[Redacted], Dalton E., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Aug 19, 2021

Appeal No. 2020001301 (E.E.O.C. Aug. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dalton E.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020001301 Hearing No. 570-2019-00221X Agency No. FSIS-2018-00151 DISMISSAL OF APPEAL On November 9, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his equal employment opportunity (EEO) complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as an International Issues Analyst, GS-0301-14, in the Agency’s Office of Policy and Program Development, Import/Export Policy Development Staff located in Washington, D.C. Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of national origin (Egyptian), religion (Muslim), disability, age (73), and in reprisal for prior protected EEO activity when: 1. On November 14, 2017, management issued Complainant a rating of “Fully Successful” on his Fiscal Year (FY) 2017 Annual Performance Evaluation and 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. 2020001301 2 issued him an unacceptable updated Position Description and Performance Standards; 2. On November 14, 2017, Complainant learned his supervisor denied his previously approved request for seven (7) days of sick leave; 3. Between November 2015, and November 14, 2017, and on May 4, 2018, management did not assign Complainant duties consistent with his position description and standards; 4. On March 1, 2018, management notified Complainant to report to his Government work location, in opposition to his prior reasonable accommodation, approved January 24, 2012, which authorized him to telework full-time; 5. Complainant was issued a Performance Counseling Letter on May 10, 2018; 6. Complainant was placed on a Performance Improvement Plan (PIP) on May 11, 2018; 7. On May 31, 2018, management assigned him work to be completed at home and weekly examinations; 8. On several dates, he was subjected to various acts of harassment, including but not limited to: a. During August 2017, management assigned a lower graded employee with less experience to review his work product, for the past three (3) years; b. Since May 25, 2017, through November 4, 2017, management failed to respond to his request for printer cartridge replacements; c. On November 14, 2017, management assigned him to complete his quarterly goals for FY 2018, update a 25-page directive, and update three (3) directives in addition to his normal work within three (3) weeks; d. On March 15, 2018, management issued him a Performance Counseling Letter, which required weekly performance reviews; e. On May 10, 2018, management stated that if Complainant sent her another email about being harassed, management would remove him from his work, then disconnected the teleconference; and f. On May 23, 2018, management addressed Complainant in a rude manner, called him names, and stated he needed a hearing aid. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing before an AJ. The AJ assigned to the matter determined that it appeared that Complainant had filed a “mixed case” complaint because he raised a harassment claim, including the PIP issue, in his EEO complaint that was inextricably linked to an involuntary resignation/retirement claim raised in a pending appeal with the Merit Systems Protection Board (MSPB). As a result, on September 23, 2019, the AJ issued a decision dismissing the hearing request without prejudice pending resolution of the jurisdictional issues with the MSPB Administrative Judge. 2020001301 3 The AJ remanded the complaint to the Agency with orders to hold the complaint “in abeyance pending the issuance of a decision from the . . . MSPB.” Complainant was advised to re-file his hearing request with the Commission’s Washington Field Office within 30 days of the MSPB decision should it determine that it lacked jurisdiction over the harassment claim, including the PIP issue. Thereafter, the Agency issued a final order noting that the AJ dismissed the complaint due to lack of jurisdiction, and that it would fully implement the AJ’s dismissal decision. The Agency then provided Complainant with appeal rights to the Commission. Complainant filed the instant appeal with the Commission. While this appeal was pending, the MSPB exercised jurisdiction over Complainant’s removal/involuntary resignation and related matters. The MSPB Administrative Judge held a hearing and subsequently issued a decision finding that Complainant failed to show that any of the Agency’s actions were improperly motivated by discriminatory or retaliatory animus. The MSPB Administrative Judge addressed Complainant’s removal action, performance-related actions, and denial of reasonable accommodation claims. In Dalton E. v. Dep’t of Agric., EEOC Petition No. 2020003305 (July 22, 2021), the Commission concurred with the MSPB final decision finding no discrimination or reprisal. Commission records indicate that Complainant re-filed his hearing request regarding any remaining claims and the matter is currently pending before an EEOC Administrative Judge and docketed as EEOC Hearing Nos. 570-2020-01001X; 570-2021-00185X. Accordingly, we find that this instant matter is not properly before the Commission and 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. 2020001301 4 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. 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. 2020001301 5 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 August 19, 2021 Date