[Redacted], Hammad M., 1 Petitioner,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Petition No. 2022000469 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hammad M.,1 Petitioner, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Petition No. 2022000469 MSPB No. DC-531D-21-0426-I-1 DENIAL OF CONSIDERATION On November 1, 2021, Petitioner filed a petition with the Equal Employment Opportunity Commission (EEOC or Commission) asking for review of a purported “final decision” issued by the Agency on October 1, 2021, concerning his claim of discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we DENY consideration of the petition. At the time of events giving rise to this complaint, Petitioner worked as a Lead Research Analyst, GS-0301-13, at the Agency’s Information Management Division in Washington, D.C. On January 24, 2020, Petitioner filed a formal EEO complaint, alleging that the Agency discriminated against him on the bases of disability (mental and physical) and reprisal for prior protected EEO activity under the Rehabilitation Act. Following subsequent amendments to his complaint, the Agency accepted the following claims of discrimination for investigation on the above bases: 1. On September 15, 2019, he was presented with a negative performance appraisal, placed on a performance improvement plan (PIP), and denied a within-grade-increase (WIGI); 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. 2022000469 2 2. On November 5, 2019, he was informed his manager did not allow him to transfer to another supervisor; 3. On December 2, 2019, most of his requests for various reasonable accommodation were denied; 4. On February 18, 2020, his most recent reasonable accommodation request to work from a remote site or a reassignment to another office was denied; and 5. On March 2, 2020, he was informed he was suspended indefinitely and was proposed for removal from the rolls of the FBI. The Agency ultimately effectuated the proposed removal on May 5, 2020. Following his removal, Petitioner allegedly attempted to amend his EEO complaint to include his removal claim. While Petitioner provided information about his removal during the EEO investigation, the Agency never formally accepted that claim for investigation. At the conclusion of the investigation, the Agency provided Petitioner with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Petitioner requested a final agency decision on the merits of his complaint. In accordance with Petitioner’s request, the Agency issued Petitioner a final decision on April 20, 2021, which concluded that Petitioner failed to prove his allegations of discrimination. In issuing the decision, the Agency provided Petitioner with appeal rights to the Merit Systems Protection Board (MSPB) because Petitioner had alleged that management unlawfully denied him a WIGI. Petitioner subsequently appealed the Agency’s final decision to the MSPB on May 20, 2021. On August 23, 2021, Petitioner contacted the Agency’s EEO Office to inquire about the Agency’s failure to investigate his removal claim. He received a response stating that the Agency had indeed investigated that issue. The following month, Petitioner emailed the Agency’s representative to inform her about the Agency’s failure to properly document the EEO investigation and to request formal acceptance of the removal claim. On October 1, 2021, the Agency representative notified Petitioner via email that the Agency would only litigate Petitioner’s denial of WIGI claim because Petitioner failed to timely raise any objections concerning the adequacy of the ROI. In response to this email, Petitioner filed the instant petition with the Commission. We note that the email does not constitute a final decision as Petitioner purported it to be. While the parties disagree on many substantive issues, they nevertheless jointly concur that any substantive review of the petition should occur after the MSPB issues its final decision. We agree. As the Commission only has jurisdiction to review final decisions issued by the MSPB, we find the instant petition for review to be premature. Our records show that the matter is still under the MSPB’s jurisdiction. 2022000469 3 Petitioner may refile his petition for review with the Commission either within thirty (30) days of receipt of the final decision of the MSPB or within thirty (30) days of when the decision of a MSPB field office becomes final. See 29 C.F.R. § 1614.303(c). Based on the foregoing, we DENY EEOC Petition No. 2022000469 at this time. 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. 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 February 2, 2022 Date