[Redacted], Katharine B., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency.

Equal Employment Opportunity Commission

May 24, 2021

Appeal No. 2021001281 (E.E.O.C. May. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katharine B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs (VA), Agency. Appeal No. 2021001281 Agency No. 2003-0660-2020100279 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated November 4, 2020, dismissing her 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 as an Advanced Medical Support Assistant, GS-6, in the Health Administrative Service of the VA Medical Center (VAMC) in Salt Lake City, Utah. On December 19, 2019, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency unlawfully retaliated against her based on prior protected EEO activity (2019 informal complaint) when, (1) between August 29, 2019 and November 27, 2019, the Agency subjected her to hostile work environment harassment. Subsequently, in a Decision on Removal dated April 3, 2020, the Agency terminated Complainant’s employment effective April 8, 2020. On April 11, 2020, Complainant filed an appeal with the Merit Systems Protection Board (MSPB) regarding her removal. And on April 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. 2021001281 2 16, 2020, Complainant sought to amend her EEO complaint to allege reprisal when (2) effective April 8, 2020, the Agency removed Complainant from employment. In a letter dated June 12, 2020, the Agency accepted Complainant’s claim of removal as an amendment to her December 2019 complaint. The Agency informed Complainant the matter was now a mixed case complaint and that (1) and (2) would be processed differently. On July 16, 2020, MSPB dismissed with prejudice Complainant’s MSPB appeal, citing withdrawal by Complainant. Complainant requested withdrawal, stating that her EEO complaint regarding removal was being investigated by the Agency. The MSPB had accepted jurisdiction of the appeal and informed Complainant of the “finality” of her withdrawal request. In its November 4, 2020 final decision, the Agency dismissed claim (2), pursuant to 29 C.F.R. § 1614.107(a)(4), for electing to pursue the MSPB process. The Agency stated that Complainant filed an MSPB appeal on April 11, 2020, and did not seek to amend her EEO complaint until April 16, 2020. The Agency stated it informed Complainant of the forum election guidelines in the removal decision and there was no way for it to know that Complainant filed an MSPB appeal prior to amending her EEO complaint. The Agency stated that MSPB informed Complainant of the finality of her request for withdrawal and allowed her an opportunity to change her request, and that her withdrawal does not negate her election. The Agency stated that claim (1), regarding harassment, is pending at the hearing stage and is not impacted by this mixed matter dismissal. The instant appeal from Complainant followed. On appeal, Complainant stated that whether the Agency was aware of or should have been aware of her MSPB appeal, when it accepted her amendment, “is of no significance.” Complainant stated that she withdrew her MSPB appeal and it was dismissed with prejudice so she should be allowed to proceed in the EEO forum. ANALYSIS AND FINDINGS 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, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non-EEO process. The record shows that Complainant filed an MSPB appeal on April 11, 2020 and amended an existing EEO complaint on April 16, 2020. The earlier filing date rendered the MSPB process the elected process. The Agency informed Complainant of the election regulations. 2021001281 3 The Commission reminds Complainant that we have held that once a complainant elects to proceed in the MSPB forum, the withdrawal of her appeal does not negate the prior election. See Hamp v. U.S. Postal Service, EEOC Appeal No. 0120112650 (October 20, 2011) (citing Hammond v. General Services Administration, EEOC Request No. 05940428 (August 25, 1994). Based on the above, we find that Complainant raised the same matter before the MSPB and that the dismissal by the Agency, pursuant to 29 C.F.R. § 1614.107(a)(4), was appropriate. CONCLUSION We AFFIRM the final agency decision dismissing claim (2) - the mixed case matter of removal. 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. 2021001281 4 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 (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 May 24, 2021 Date