[Redacted], Linda S., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Jul 14, 2021

Appeal No. 2020001462 (E.E.O.C. Jul. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linda S.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2020001462 Agency No. HHS-IHS-0481-2016 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 26, 2017, regarding a formal complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Supervisory Health Systems Analyst, GS-12, in Elko, Nevada. On December 23, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on national origin (Sioux Assiniboine), religion (Native American Church), sex, (female), color (dark), disability, age (62 years old at the time of the alleged incidents), and in reprisal for prior protected EEO activity. By letter dated February 22,2017, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 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. 2020001462 2 1. From January 20, 2016 until October 4, 2016, Complainant was subjected to harassment, including, but not limited to: a. Complainant received 2015 and 2016 Performance Appraisals that contained notes she had never seen and were inaccurate, resulting in lower ratings; b. Pressure to rate her employees as she thought inaccurate; c. Was not provided an ITAS key so her leave requests could be submitted electronically instead of on paper; d. Her authority to budget, hire, and supervise her employees was usurped; e. She was not named Acting CEO, was removed from the Executive team, removed from the CEO rotation schedule, and systematically stripped of her supervisory duties; and f. Complainant was wrongfully charged as being AWOL, denied FMLA, and placed on Leave Restriction. 2. On June 22, 2016, Complainant was denied a reasonable accommodation. 3. On August 4, 2016, Complainant resigned her position due to ongoing harassment and a hostile work environment.2 In its acceptance letter, the Agency set forth that it would issue a final decision with appeal rights to the Merits Systems Protection Board (MSPB). On September 26, 2017, the Agency issued a final decision finding no discrimination. The Agency provided Complainant with appeals rights to the MSPB (not the EEOC). On July 12, 2019, the MSPB Administrative Judge (AJ) found that MSPB lacked jurisdiction over Complainant’s claim that she was constructively demoted, reasoning that she was a re- employed annuitant. However, the MSPB AJ further found that Complainant was raising an individual right of action appeal (IRA).3 The MSPB AJ denied Complainant’s request for corrective action reasoning that, “I find that the Agency established by clear and convincing evidence that it would have taken the same action whether or not [Complainant] had engaged in protected whistleblowing.” 2 The record reflects that Complainant accepted a position as a Pharmaceutical Billing Technician, GS-6, in Teppenish, Washington. 3 An IRA is the right under the Whistleblower Protection Act to appeal to the MSPB a personnel action taken in alleged retaliation for whistleblowing. 2020001462 3 The MSPB decision set forth, in pertinent part, that the initial decision would become final on August 16, 2019 and Complainant could request review by the EEOC of her discrimination claims only. The instant appeal followed. On appeal, Complainant asserts that the Agency’s final decision provided her appeal rights to the MSPB and that she is dissatisfied with the MSPB’s decision. Complainant therefore seeks review by the EEOC. Complainant also asserts that the Agency used her constructive demotion claim as a delay tactic to avoid having her discrimination claims considered on the merits by an EEOC AJ. In response, the Agency asserts that the MSPB did not make any determination on Complainant’s allegations of discrimination. The Agency asserts that the MSPB denied jurisdiction over Complainant’s constructive demotion claim. In addition, the Agency asserts that while the MSPB addressed Complainant’s whistleblowing claims, the EEOC does not have jurisdiction over these matters. 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). The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address. Id. If a complainant is dissatisfied with the Agency’s final decision on a mixed case complaint, the complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the Agency’s final decision. 29 C.F.R. § 1614.302(d)(1)(ii). Here, the Agency designated Complainant’s EEO complaint as a mixed case complaint and provided Complainant appeal rights of its final decision to the MSPB. In MSPB Docket No. SF- 0752-18-0108-I-2 (July 12, 2019), the MSPB AJ found it did not have jurisdiction over Complainant’s constructive demotion claim, and did not address any allegation of discrimination. While the MSPB AJ addressed Complainant’s whistleblower claims, the EEOC does not have jurisdiction over claims of reprisal for whistleblowing activities. See Espinoza v. Dep’t of the Navy, EEOC Petition No. 03950154 (Feb. 9, 1996). The Commission’s regulations governing the processing of mixed cases require that, should the MSPB dismiss an appeal on a mixed case complaint 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). Because the MSPB dismissed Complainant’s constructive demotion claim and did not address his allegations of discrimination, it should now be processed as a non-mixed case. The record reflects that Complainant was not provided the opportunity to elect either a hearing before an EEOC AJ or an immediate final decision due to the Agency designating this matter as a mixed 2020001462 4 case complaint. Thus, the Agency should provide the Complainant with the option of requesting a hearing before an EEOC AJ. Accordingly, we VACATE the Agency’s final decision finding no discrimination and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER Within thirty (30) calendar days from the date this decision is issued, the Agency is ordered to notify Complainant of the right to request a hearing and decision from an EEOC AJ, or her right to request an immediate final agency decision with new appeal rights to the EEOC. See 29 C.F.R. § 1614.108(f). 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 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. 2020001462 5 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). 2020001462 6 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. 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 July 14, 2021 Date