[Redacted], Eric S., 1 Petitioner,v.Dr. Miguel A. Cardona, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Petition No. 2022000205 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eric S.,1 Petitioner, v. Dr. Miguel A. Cardona, Secretary, Department of Education, Agency. Petition No. 2022000205 MSPB No. DC-0752-21-0553-I-1 DECISION On October 16, 2021, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of the initial decision issued by a Merit Systems Protection Board (MSPB) Administrative Judge (AJ) on October 14, 2021, concerning his claim of 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. The MSPB AJ’s initial decision became the MSPB’s final decision on November 18, 2021. For the following reasons, we DENY consideration of the petition and REMAND the matter to the Agency for further processing. BACKGROUND At the time of events giving rise to this complaint, Petitioner worked as an Informational Technology (IT) Specialist, GS-2210-15, at the Agency’s Office of the Chief Information Officer (OCIO) in Washington, D.C. On October 16, 2020, Petitioner filed a formal EEO complaint, Agency No. ED-2021-OCIO- 0003, alleging that the Agency discriminated against him on the bases of race (Black or African American), national origin (Jordanian), religion (agnostic), sex (male), age (over 40), and reprisal in violation of Title VII and the ADEA. 1 This case has been randomly assigned a pseudonym which will replace Petitioner’s name when the decision is published to non-parties and the Commission’s website. 2022000205 2 Following his resignation from the Agency on October 31, 2020, Petitioner amended his complaint to include an additional claim. The Agency ultimately accepted the following claims for investigation: 1. On October 1, 2020, his supervisor issued a Letter of Counseling to him for failure to meet her expectations; 2. On October 29, 2020, his supervisor issued a lower than expected FY2020 REsults ACHieve (REACH) performance rating to him; and 3. On October 31, 2020, he was constructively discharged when he resigned from the Agency, effective as of October 31, 2020. At the conclusion of the investigation, the Agency provided Petitioner a copy of the report of investigation (ROI) and notified him that it would issue a final agency decision on the merits of his mixed case complaint. Petitioner subsequently appealed the Agency’s final decision to the MSPB. On October 14, 2021, the MSPB Administrative Judge (AJ) assigned to the matter issued an initial decision dismissing Petitioner’s mixed case complaint on the grounds that the MSPB lacked jurisdiction to review the complaint, as Petitioner failed to show that his resignation was involuntary. Petitioner filed the instant petition. ANALYSIS AND FINDINGS EEOC regulations provide that the Commission has jurisdiction over mixed case appeals and complaints on which the MSPB has issued a decision that makes determinations on allegations of discrimination. 29 C.F.R. § 1614.303 et seq. However, when the MSPB, as it did here, denies jurisdiction, the Commission has held that there is little point in continuing to view the matter as a “mixed case” as defined by 29 C.F.R. § 1614.302(a), because the MSPB did not address any matters within the Commission’s jurisdiction. Therefore, the Commission finds that it has no jurisdiction to review Petitioner’s petition. This matter will be considered a “non-mixed” case and processed accordingly. See generally Schmitt v. Dep’t of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep’t of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i) and (ii). In accordance with these principles, Petitioner’s request for review is DENIED and Petition No. 2022000205 is hereby administratively closed. MSPB No. DC-0752-21-0553-I-1 (Agency No. ED-2021-OCIO-0003) is referred to the Agency for further processing as outlined below. CONCLUSION Petitioner is advised by operation of 29 C.F.R. § 1614.302(b) that the Agency, if it has not already done so, is required to process his allegation of discrimination. Because Petitioner filed a mixed case complaint with the Agency, the Agency, pursuant to 29 C.F.R. § 1614.108(f), shall, within thirty (30) calendar days of its receipt of this decision, notify Petitioner of the right to 2022000205 3 elect between a hearing before an EEOC Administrative Judge or an immediate final decision on his discrimination claim pursuant to 29 C.F.R. § 1614.110. 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 Petitioner and his/her representative. If the Agency does not comply with the Commission’s order, the Petitioner may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Petitioner 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 Petitioner 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 Petitioner 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. 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. PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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. 2022000205 4 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 Petitioner’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 November 22, 2021 Date