[Redacted], Gigi M., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 12, 2021

Appeal No. 2020003818 (E.E.O.C. Jan. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gigi M.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2020003818 Agency No. 2003-0598-2019104071 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's April 29, 2020, final decision concerning her equal employment opportunity (EEO) mixed case complaint alleging employment discrimination in violation of 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 with the Agency as a Clinical Pharmacist in Little Rock, Arkansas. On August 21, 2019, Complainant filed a formal complaint, as amended, alleging that the Agency subjected her to discrimination on the bases of age and reprisal for prior protected EEO activity when: 1. On February 14, 2019, the Pharmacy Chief denied Complainant’s request for advanced sick leave; 2. On May 13, 2019, the Pharmacy Chief issued Complainant a Proposed Removal from Federal Service, regarding her conduct and performance; and 3. On October 16, 2019, the Medical Center Director issued her a Notice of Removal, effective October 25, 2019.2 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 Complainant's Removal merged with the Notice of Proposed Removal. 2020003818 2 On October 4, 2019, the Agency issued a partial acceptance/dismissal of Complainant’s complaint. Therein, the Agency accepted claims 2 and 3 for investigation, but dismissed claim 1 for the failure to timely contact an EEO Counselor. Following the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to Complainant’s case however issued an order on May 14, 2020, dismissing Complainant’s hearing request for lack of jurisdiction. Therein, the AJ noted that the Agency acknowledged that it erroneously provided Complainant with the notice of her right to request a hearing with the Commission because her complaint is a mixed case with no non- mixed claims. The AJ observed that Complainant was a career employee who claimed she was subjected to discrimination when she was terminated, and therefore found that Complainant’s complaint should be processed as mixed case complaint with appeal rights to the Merit Systems Protection Board (MSPB). Meanwhile, the Agency issued its final decision on April 29, 2020, finding no discrimination and provided complainant with appeal rights to the MSPB, not the EEOC. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, but not both. 29 C.F.R. § 1614.302(b). As a general matter, if a complainant is dissatisfied with an agency's final decision on a mixed case complaint, the complainant may appeal the matter to the MSPB (not the EEOC) within 30 days of receipt of the agency's final decision. 29 C.F.R § 1614.302(d)(1)(ii).3 In the present matter, the Agency determined that Complainant's claim was a mixed case complaint and issued a final decision finding no discrimination. The final decision gave Complainant mixed case appeal rights and instructed her to file with the MSPB, not the EEOC. Complainant, however, filed her appeal from the Agency's final decision on a mixed case complaint with the EEOC. Accordingly, the appeal is DISMISSED.4 3 Individuals who have received a final decision from the MSPB on the appeal of a final decision on a mixed case complaint may petition the EEOC to consider the MSPB's decision. 29 C.F.R. § 1614.303(a). 4 We note that the Commission's regulations require that should the MSPB dismiss an appeal for lack of jurisdiction, the Agency is required to recommence processing the matter as a non-mixed case. 29 C.F.R. § 1614.302(c)(2)(ii). 2020003818 3 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). 2020003818 4 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 January 12, 2021 Date