U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ceola K,1 Complainant, v. Norris Cochran, Acting Secretary, Department of Health and Human Services (Administration for Children and Families), Agency. Appeal No. 2020003107 Agency No. HHS-ACF-1097-2019 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 30, 2020, concerning a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND During the period at issue, Complainant worked as an Executive Assistant, 0301, GS 11 at the Agency’s Administration for Children and Families in Washington, D.C. On September 9, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her in reprisal for prior protected EEO activity when, on June 12, 2019,2 Complainant was issued a Proposal to Remove and was subsequently removed from Federal service on September 20, 2019. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The record indicates that Complainant amended her formal complaint to include final removal decision. 2020003107 2 On September 30, 2019, the Agency accepted the formal complaint, and notified Complainant that it would be processed as a “mixed case” because it involved an action (Complainant’s removal) appealable to the U.S. Merit Systems Protection Board (MSPB or Board). The Agency further notified Complainant that after the conclusion of an investigation of the accepted claims, the Agency would issue a final decision, and advise Complainant of her right to appeal the Agency’s final decision to the MSPB, not the EEOC. See 29 C.F.R. § 1614.302(d)(3). However, before the Agency issued a final decision, Complainant filed, on October 20, 2019, an initial appeal with the MSPB regarding her September 20, 2019 removal. On October 25, 2019, the MSPB Administrative Judge (MSPB AJ) dismissed Complainant’s appeal, identified as Docket Number DC-0752-20-0064-I-3, without prejudice in response to the Agency’s motion stating that the MSPB lacked authority under Lucia v. Securities Exchange Commission, 138 S. Ct. 2044 (2018), to adjudicate Complainant’s appeal. The MSPB AJ indicated that the Lucia matter was currently pending before the Board and represented that Complainant’s appeal would be automatically refiled by the Board on April 22, 2020, to allow the newly formed Board time to address this issue. On April 28, 2020, the Agency filed another motion reasserting that the MSPB lacked authority to address Complainant’s appeal. Consequently, on May 29, 2020, the MSPB AJ again dismissed Complainant’s appeal without prejudice, indicated that the Lucia decision was still pending before the Board, and indicated that Complainant’s appeal would be automatically refiled by the Board on November 25, 2020. While this matter was pending before the Board, the Agency issued a final decision on January 30, 2020, finding no discrimination. The final decision further advised Complainant of the following: In accordance with 5 C.F.R., Part 1201, if Complainant is dissatisfied with this final agency decision, Complainant may appeal the decision to the Merit Systems Protection Board (MSPB), not to the Equal Employment Opportunity Commission (EEOC), within 30 calendar days of receipt of this FAD. (emphasis in original) . . . If Complainant appeals to the MSPB and is dissatisfied with the MSPB’s decision, Complainant may then ask the EEOC to review the MSPB’s decision. On April 13, 2020, Complainant filed the instant appeal with the Commission. Complainant did not submit any statements or briefs on appeal. ANALYSIS AND FINDINGS Based on our review of the record, we find that the instant appeal is not properly before the Commission at this time. Complainant was informed by the Agency, in its final decision on her complaint, that the decision was appealable to the MSPB, not the EEOC. Complainant has filed an appeal with the MSPB and, at present, the Board has not yet issued a decision on the merits of that appeal. 2020003107 3 While technically the MSPB AJ dismissed Complainant’s appeal without prejudice, it is clear that Complainant’s appeal will be refiled and considered by the Board once the related Lucia decision issue is resolved. We further note that the Commission will not accept appeals from MSPB dismissals without prejudice. See 29 C.F.R. § 1614.303(a). Therefore, under these unusual circumstances, we construe Complainant’s appeal of her removal as still pending before the MSPB and, therefore, the present appeal to EEOC is premature. Once the MSPB makes a final decision on Complainant’s appeal, she will then be entitled to request that EEOC review that portion of the MSPB decision concerning Complainant’s discrimination claims pursuant to 29 C.F.R. § 1614.303. Therefore, Complainant’s appeal in this matter is DISMISSED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020003107 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 2, 2021 Date
