[Redacted], Ivan V., 1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency.

Equal Employment Opportunity Commission

Jan 4, 2021

Appeal No. 2020004188 (E.E.O.C. Jan. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan V.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (National Cemetery Administration), Agency. Appeal No. 2020004188 Agency No. 2004-0839-2020102772 DECISION On July 15, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 10, 2020, dismissing his complaint of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked was employed as a Cemetery Caretaker Supervisor at Culpeper National Cemetery in Culpeper, Virginia. On April 20, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination and a hostile work environment based on his race (African-American) and reprisal for prior protected EEO activity when: 1. For more than a year prior and through January 31, 2020, on approximately a weekly basis he was subjected to unreasonable assignments, derogatory comments, yelling, and threats of termination. 2. He was terminated from employment effective January 31, 2020. 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. 2020004188 2 The Agency dismissed the entire complaint under 29 C.F.R. § 1614.107(a)(2), reasoning Complainant did not bring these matters to the attention of an EEO counselor. While the record reflects that Complainant’s attorney initiated EEO counseling on behalf of Complainant on March 6, 2020, the Agency found that no counseling occurred. It recounted that the EEO counselor followed up with Complainant and his attorney on March 17 and March 31, 2020, by calling and emailing both of them on both these dates, but neither got back to the counselor. The Agency also dismissed issue 2 because on March 2, 2020, Complainant appealed his removal to the Merit Systems Protection Board (MSPB). The Agency found that because Complainant filed his EEO complaint after filing his appeal with the MSPB on the same matter, this constituted an election of the MSPB forum under 29 C.F.R. § 1614.107(a)(4) & .302(b) on issue 2. The instant appeal followed. ANALYSIS AND FINDINGS Issue 2 On January 29, 2020, the Agency issued Complainant a decision to remove him effective January 31, 2020, for failure to follow instructions and inappropriate conduct. Therein, the Agency notified him that if he believed this action was based on protected EEO discrimination, he could elect to file an appeal with the MSPB or an EEO complaint, but not both, and the election was exercised by which one he filed first. The Agency advised Complainant of the time limits to file an appeal with the MSPB and initiate EEO counseling to start the EEO complaint process. Complainant appealed his removal to the MSPB on March 2, 2020. In an initial decision dated March 20, 2020, the MSPB granted the Agency’s motion to dismiss the appeal for being untimely filed. It found the appeal was filed beyond the 10-day time limit which expired on February 10, 2020, which applied because Complainant was removed under the authority of 38 U.S.C. § 714. We note that after the Agency filed its motion to dismiss, Complainant filed a request with the MSPB that his appeal be dismissed without prejudice because he intended to file an EEO complaint rather than the appeal. The MSPB declined because Complainant elected to litigate his removal at the MSPB, albeit in an untimely manner, as evidenced by his receiving the election rights in his removal notice and exercising them by filing his appeal with the MSPB first. Complainant filed a petition with the full MSPB Board to review the initial decision. We take administrative notice that as of December 10, 2020, this petition is still pending before the MSPB. In the instant appeal from the Agency’s dismissal of his EEO complaint, Complainant, via his attorney, recounts that the removal notice advised him “you shall be deemed to have exercised your option to appeal this action at such time as you timely initiate action to appeal to MSPB” (emphasis in original). 2020004188 3 He argues that he had no reason to be concerned about the possibility of an untimely MSPB appeal since the Agency notified him he could then safety elect to proceed with a mixed case complaint through the Agency’s EEO process instead. Citing MSPB caselaw, Complainant argues that an election is not valid unless the agency properly informs the complainant of the election requirements. He argues the Agency should be barred from asserting that an untimely filing constituted a valid election to proceed before the Board because the “timely” language was misleading, material and prejudicial. We find that this matter is not ripe for adjudication because a final decision on Complainant’s request to dismiss his MSPB appeal without prejudice is pending before the full Board. If the MSPB dismisses Complainant’s appeal without prejudice, the Agency would be required to resume processing of issue 2 in Complainant’s EEO complaint from the point processing ceased. A dismissal without prejudice would vitiate the election of the MSPB forum. If the MSPB dismisses Complainant’s appeal with prejudice, we have previously upheld the dismissal of an EEO complaint based on a valid election to proceed first through an MSPB appeal even when that appeal was later dismissed by the MSPB as untimely. See, e.g., Cardozo v. Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004). We note that Complainant now also argues that his election to proceed with an MSPB appeal should not bar his subsequent EEO complaint because he justifiable relied on misinformation from the Agency on his election rights. We are making no finding on justifiable reliance here as it would be a premature determination prior to the MSPB ruling. Issue 1 On March 6, 2020, by telephone Complainant’s attorney initiated contact with an EEO counselor on behalf of Complainant. The EEO counselor completed an intake sheet indicating that Complainant raised issue 2, with no mention of issue 1. On appeal, Complainant’s attorney argues that he engaged in EEO counseling on behalf of Complainant when he talked to the EEO counselor on March 6, 2020. We agree.2 2 Complainant’s attorney argues that he did not receive the EEO counselor’s follow up emails, and a record review of them shows why - they incorrectly spelled his name - which is part of his email address. A review of the follow up emails confirms that the EEO counselor inverted two letters in the email address. Intake was by telephone, and the EEO counselor’s intake sheet thereon had the same error. We do not know the original source of the error. Regarding the telephone contacts, Complainant’s attorney argues that he has been working remotely since March 16, 2020, and his office telephone calls and voicemail forwards to his receptionist. He argues that his receptionist did not notify him of any phone calls or messages from the EEO counselor, but it is possible that during these chaotic first weeks of the COVID-19 pandemic, one or two calls were missed. 2020004188 4 On appeal, Complainant’s attorney argues that his initial contact with the EEO counselor was sufficient to put the Agency on notice of Complainant’s claims, as evidenced by them being summarized in the counselor’s report. But only issue 2 was summarized therein. EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that a claim is subject to dismissal where a complainant raises a matter in his EEO complaint that has not been brought to the attention of an EEO counselor and is not like or related to a matter that has been brought to the attention of an EEO counselor. Based on the record before us, we are unable to determine if Complainant’s attorney, on behalf of his client, raised issue 1 with the EEO counselor on March 6, 2020. Further, while the removal decision reflected the charges against Complainant, it contained none of the facts or specifications that gave rise to them. Without this information, which most likely is in the proposed removal, and more information on the specifics of issue 1, we are unable to discern, assuming Complainant’s counsel did not raise issue 1 with the EEO counselor, whether it is like or related to issue 2. Accordingly, the FAD is REVERSED. ORDER The Agency shall hold issue 2 in abeyance until the MSPB makes a final decision on whether Complainant’s appeal on the same matter is dismissed with or without prejudice. Within 35 calendar days after the MSPB’s final decision, the Agency shall issue a letter accepting issue 2 for investigation or a FAD appealable to EEOC dismissing issue 2. The Agency shall gather information on whether Complainant’s attorney raised issue 1 with the EEO counselor on March 6, 2020, and if not whether issue 1 is like or related to issue 2. To the extent possible, gathering this information shall include securing statements by the EEO counselor and Complainant’s attorney, obtaining a copy of Complainant’s proposed removal dated January 16, 2020, and obtaining information on the details of issue 1. Thereafter, within 40 calendar days of the date of this decision, the Agency shall issue a letter to Complainant’s counsel with a courtesy copy to Complainant accepting all or part of issue 1 for investigation or issue a FAD dismissing all of issue 1 under any applicable ground in 29 C.F.R. § 1614.107(a). All grounds remain available because the Agency had little opportunity to develop the specifics of issue 1 during the EEO counseling process. The Agency shall also ask Complainant’s counsel to clarify the bases of protected discrimination Complainant claims - there was a discrepancy regarding bases identified in intake verses the EEO complaint. The Agency shall update the bases if there is a change. 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). 2020004188 5 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. 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020004188 6 In the absence of a legible postmark, 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 (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. 2020004188 7 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 4, 2021 Date