[Redacted], Myrna P., 1 Complainant,v.Kathy McGettigan, Acting Director, Office of Personnel Management, Agency.

Equal Employment Opportunity Commission

Jun 15, 2021

Appeal No. 2020002092 (E.E.O.C. Jun. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myrna P.,1 Complainant, v. Kathy McGettigan, Acting Director, Office of Personnel Management, Agency. Appeal No. 2020002092 Hearing No. 570-2020-00080X Agency No. 2016025 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order affirming an Equal Employment Opportunity Commission’s Administrative Judge’s (AJ2) decision to dismiss her hearing request concerning EEOC Hearing No. 570-2020-00080X on the grounds that it stated the same matters that were previously addressed by the Commission.2 Upon review, the Commission finds that Complainant’s hearing request was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), and we AFFIRM the final order. BACKGROUND In 2015, Complainant filed an Individual Right of Action (Whistleblower appeal) with the Merit Systems Protection Board (MSPB or Board) that contained 17 claims. Shortly thereafter, she filed a formal EEO complaint in 2016, with the Agency raising two claims that were accepted for processing. 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 The Agency did not issue a final order in this matter. Consequently, by operation of our regulations, AJ2’s November 13, 2019, decision became the Agency’s final order forty days after its receipt. See 29 C.F.R. § 1614.109(i). 2020002092 2 During the pendency of both the MSPB appeal and the EEO complaint, Complainant amended her 2016 EEO complaint twice to include a total of four additional claims. Complainant’s EEO complaint alleged discrimination based on disability (anxiety) and reprisal when: 1. since August 5, 2015, the Agency failed to provide reasonable accommodation of her disability; 2. on April 11, 2016, her supervisor changed her work responsibilities; 3. on or about June 20, 2016, she was denied training; 4. on or about June 20, 2016, she learned that her Within Grade Increase (WIGI) issued on June 7, 2016, was denied; 5. on May 24, 2016, the Agency informed her it would not grant her requested accommodation; and 6. after denying her accommodation on May 24, 2016, the Agency refused to offer her alternative accommodations and failed to comply with its own policies relating to the granting/denial of accommodation despite her repeated requests. As a result, of claim 4, concerning the WIGI, the Agency informed Complainant that her complaint was now a mixed case complaint. Upon advising Complainant of her mixed case rights, the Agency advised her and her attorney that if she had any objections, she must respond in writing within seven days of receipt of its letter. Complainant did not object or take any actions consistent with the Agency’s instructions but instead, on September 26, 2016, she submitted a hearing request to the EEOC. After the Agency informed the Administrative Judge assigned to case, AJ1, that the matter was considered a mixed case, on November 16, 2016, she dismissed Complainant’s hearing request on the grounds that she did not have the right to a hearing on a mixed case complaint. Complainant filed a motion to stay the dismissal and a “request for reconsideration” with AJ1, which were not granted. More than a year later, Complainant filed an appeal with the MSPB seeking to amend her Whistleblower appeal to include the claims she had raised in her EEO complaints. Instead, the MSPB accepted her EEO claims as a mixed case appeal. After a hearing over multiple days, the MSPB AJ issued two separate decisions, one on Complainant’s Whistleblower appeal and one on her mixed case appeal. The MSPB AJ denied Complainant’s requests for corrective action on all counts in both appeals. With respect to claims 1, 4, 5, and 6, the MSPB AJ specifically found that Complainant did not establish her affirmative defenses of retaliation or disability discrimination. The MSPB AJ found that Complainant’s evidence was insufficient to establish a disabling condition defined by relevant law; that her requests for accommodations were not reasonable; and that she was not discriminated against based on her disability or retaliated against.3 3 Claims 2 and 3 were only addressed in the decision concerning Complainant’s Whistleblower appeal; consequently, there was no finding regarding Complainant’s claim of disability and reprisal discrimination with respect to these claims. 2020002092 3 Complainant was advised that both MSPB decisions would become final on May 9, 2019, unless Petitions for Review to the full Board were filed by that date. Complainant was also advised that she could seek review by the Commission. Nevertheless, on September 19, 2019, over three months past the deadline to seek review of the MSPB’s decision, Complainant instead filed another hearing request with the EEOC concerning her 2016 EEO claims. This request was docketed as EEOC No. 570-2020-00080X. Complainant also requested that the hearing be consolidated with another complaint that was pending with the EEOC (EEOC Hearing No. 570- 2018-00885X), based on her assertion that all of the claims are related. The Agency filed a motion to dismiss the new hearing request and to deny consolidation because it maintained that AJ1 properly dismissed the matter as a mixed case complaint pursuant to 29 C.F.R. § 1614.302(d)(3), and because the matter was barred from being relitigated after already being heard by the MSPB as a mixed case appeal pursuant to 29 C.F.R. § 1614.107(a)(4). Complainant argued, however, that her 2016 EEOC claims should not be dismissed because the MSPB did not have jurisdiction over the mixed case. On November 13, 2019, AJ2 dismissed Complainant’s hearing request concerning her 2016 EEO claims. AJ2 found that the Commission’s regulations required dismissal when the underlying complaint was the subject of a previous adjudication decided by an agency or Commission. AJ2 found that, to the extent Complainant wished to challenge the 2016 dismissal of her hearing request, she should have done so through the appellant process.4 On appeal, Complainant argues that AJ2 erred in dismissing her hearing request for EEOC Hearing No. 570-2020-00080X. Specifically, she argues that apart from claim 4, which she maintained was properly processed and is not the subject of this appeal, the MSPB did not have jurisdiction over claims 1, 2, 3, 5, and 6. Moreover, she argues that because the Agency never issued a final action adopting AJ1’s decision, she did not have an avenue to appeal the dismissal of her hearing request in 2016. Finally, she argues that claims 1, 2, 3, 5, and 6 should be remanded and consolidated with EEOC Hearing No. 570-2020-00885X. The Agency argues that: Once Complainant amended her EEO complaint to include an action that is directly appealable to the Board, it rendered the rest of her claims in that complaint that were related and stemmed from the same operative nucleus of facts part of her mixed case. As discussed below, [AJ2’s] dismissal was correct, first, because those claims were already decided by the agency or Commission and, second, because the claims were already raised before the MSPB as part of her mixed case appeal. And, finally, even if none of those actions were correct, the 4 On January 15, 2020, AJ2 granted Complainant’s request to withdraw her hearing request concerning EEOC Hearing No. 570-2018-00885X without prejudice with the understanding that she could refile her request within 30 days of the EEOC’s decision in the instant matter. 2020002092 4 deadline to appeal those actions have long since passed and Complainant cannot show good cause why her untimeliness should be excused. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. In dismissing the hearing request for claims 1, 2, 3, 5, and 6, AJ2 correctly determined that these claims were the same as those raised in an earlier complaint that was decided by AJ1 in 2016, and which were never appealed. Therefore, we find that AJ2 acted properly in dismissing Complainant’s hearing request concerning EEOC Hearing No. 570-2020-00080X. We are not persuaded by Complainant’s arguments on appeal. Without accepting the Agency’s broad assertion that every claim became mixed when Complainant amended her EEO complaint with claim 4, we note that the MSPB did accept jurisdiction over her complaint and treated claims 1, 4, 5, and 6 as a mixed case appeal. Complainant chose not to file a Petition for Review with the full Board; nor did she file a petition with the Commission to review the MSPB AJ’s findings of no discrimination. Furthermore, we find disingenuous Complainant’s argument that she did not have an avenue of appeal because the Agency did not issue a final action adopting AJ1’s decision. The Agency also did not issue a final action adopting AJ2’s decision but Complainant’s attorney filed an appeal in the instant matter. Likewise, as was noted above, the Commission’s regulations provide that, by operation of our regulations, an Administrative Judge’s decision becomes an Agency’s final order forty days after its receipt; consequently, we find that a clear avenue was available to Complainant to challenge AJ1’s decision. Finally, we note that the Commission has consistently held that a complainant must act with due diligence in the pursuit of his or her claim or the doctrine of laches may apply. Cher B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120170087 (Feb. 8, 2017). Here, Complainant waited almost three years to contest the dismissal of her 2016 hearing request without providing an adequate justification. CONCLUSION Accordingly, the Agency’s final order is AFFIRMED.5 5 In reaching our decision above, we take no position on either the MSPB’s findings of no discrimination or the Agency’s position that claims 1, 2, 3, 5, and 6 became mixed cases after Complainant raised claim 4. Like AJ2, our decision is based solely on the fact that Complainant is raising the same matter that was previously addressed by the Commission in 2016. 2020002092 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). 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. 2020002092 6 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 June 15, 2021 Date