[Redacted], Dominica H., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Apr 15, 2021

Appeal No. 2020000499 (E.E.O.C. Apr. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominica H.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000499 Hearing No. 480-2018-00666X Agency No. SF-18-0001-SSA DECISION On September 12, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 15, 2019, dismissing in part and finding no discrimination on the remaining part of her complaint alleging 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Social Insurance Specialist (Claims Specialist), GS-0105-11, at its Field Office in Santa Maria, California. On December 26, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected her to discrimination based on her race (White), sex (female), and age (49 & 50) when: 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. 2020000499 2 1. she was subjected harassment and sexual harassment from September 2016 to October 2, 2017; and 2. she was constructively discharged (i.e., involuntarily resigned) on October 2, 2017. Following an EEO investigation, the Agency gave Complainant the investigative report and right to request a hearing before an Administrative Judge (AJ) with the EEOC, which she did. Thereafter, the AJ dismissed Complainant’s hearing request because the constructive discharge claim was appealable to the Merit Systems Protection Board, making her complaint mixed and hence having no right to a hearing before the EEOC. 29 C.F.R. § 1614.302(d)(2). The AJ further determined that Complainant’s harassment claims were inextricably tied to her constructive discharge claim. The AJ directed the Agency to issue a FAD on Complainant’s complaint and make it appealable to the MSPB. Thereafter, the Agency issued a FAD on August 15, 2019, dismissing Complainant’s claim of sexual harassment for failure to timely initiate EEO counseling. It also dismissed her claim of non-sexual harassment claim occurring prior to April 18, 2017, because it was included in Complainant’s prior informal complaint SF-17-0345, which was closed via settlement agreement on April 18, 2017. The Agency found no discrimination on the remainder of the complaint and gave Complainant appeal rights to the EEOC’s Office of Federal Operations (OFO), not the MSPB. The instant appeal followed. While this appeal was still pending, on October 4, 2019, the Agency reissued the August 15, 2019 FAD with new appeal rights - to the MSPB, not the EEOC. It explained it inadvertently gave the wrong appeal rights in its August 15, 2019 FAD. On October 21, 2019, Complainant filed an appeal with the MSPB. On December 3, 2019, the MSPB issued an initial decision dismissing Complainant’s appeal for lack of jurisdiction. We take administrative notice that the initial decision became final on January 7, 2020.2 In its December 17, 2019 reply to Complainant’s notice of appeal the Agency argues that Complainant’s appeal is premature because the MSPB’s December 3, 2019 initial decision is not yet final. ANALYSIS AND FINDINGS Where the agency or the MSPB questions the MSPB's jurisdiction over the appeal on the same matter as the complaint, the agency shall hold the mixed case complaint in abeyance until the MSPB rules on the jurisdictional issue and notify the complainant that it is doing so. During this time, all time limitations for processing or filing under this part are tolled. 2 In response to an inquiry by EEOC, on March 30, 2021, the MSPB advised it had no record of Complainant filing a petition to review the initial decision with the MSPB Board. 2020000499 3 If the MSPB finds that it does not have jurisdiction over the matter, the agency shall recommence processing of the mixed case complaint as a non-mixed case EEO complaint. 29 C.F.R. § 1614.302(c)(ii). While the Agency inadvertently gave appeal rights to the EEOC in its August 15, 2019 FAD, the above regulation still applies. Because the MSPB dismissed Complainant’s appeal for lack of jurisdiction her EEO case is now unmixed and the Agency must recommence processing of her entire complaint from the point processing ceased.3 The FAD is REVERSED. The Agency shall comply with the order below. ORDER (E0618) The Agency shall submit, on Complainant’s behalf, a request for a hearing on Complainant’s behalf to the appropriate EEOC Hearings Unit, as well as the entire complaint file and a copy of this appellate decision. The Agency shall provide a copy of hearing request to Complainant, and the Compliance Officer as referenced below. The Agency shall complete the above actions within 30 calendar days from the date of this decision. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 3 We take this opportunity to remind the Agency’s Office of Civil Rights and Equal Opportunity that regardless of whether a complaint is mixed, dismissals pursuant to 29 C.F.R. § 1614.107 are appealable to the EEOC, not the MSPB. 29 C.F.R. § 1614.302(d). 2020000499 4 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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). 2020000499 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 April 15, 2021 Date