[Redacted], Nathaniel S., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency.

Equal Employment Opportunity Commission

Jul 28, 2021

Appeal No. 2021001963 (E.E.O.C. Jul. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathaniel S.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 2021001963 Hearing No. 460-2020-00101X Agency No. 2019-28198-FAA-05 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s procedural dismissal regarding his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Airway Transportation System Specialist, FV-2101-H, in Technical Operations at the Agency’s Houston District, Texas facility. On April 2, 2019, Complainant filed a formal equal employment opportunity (EEO) complaint alleging that the Agency subjected him to discrimination on the bases of race (African- American), sex (male), and age (52) when, effective October 13, 2018, it removed Complainant 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. 2021001963 2 from Agency employment.2 Pursuant to 29 C.F.R. § 1614.302(d), the Agency accepted the matter as a “mixed case complaint” for investigation. On October 15, 2019, when it had not completed the investigation within the regulatory timeframe, the Agency erroneously informed Complainant that he had the right to request a hearing before an EEOC Administrative Judge (AJ). In November 2019, Complainant requested an EEOC hearing. On January 29, 2020, the Agency informed Complainant that it completed the complaint investigation and that the matter was a mixed case complaint because it is “related to or stems from actions appealable to the Merit Systems Protection Board [MSPB].” The Agency informed Complainant that it erred in issuing him the right to request an EEOC AJ hearing, and that it would render a final agency decision based on the investigative record. In a final decision dated February 25, 2020, the Agency found no discrimination. The Agency informed Complainant of the right to appeal the decision to the MSPB.3 Subsequently, in a Notice of Proposed Dismissal dated June 11, 2020, an EEOC AJ stated that the instant complaint should be dismissed pursuant to 29 C.F.R. §§ 1614.107 and .109, as a matter appealable to the MSPB. The instant appeal from Complainant followed the AJ’s Notice. ANALYSIS AND FINDINGS A “mixed case complaint” is a complaint of employment discrimination filed with a Federal Agency based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action appealable to MSPB. 29 C.F.R. § 1614.302(a)(1). Generally, pursuant to 29 C.F.R. § 1614.302(d), the procedure for processing a mixed case complaint includes an EEO investigation, a final agency decision without a hearing, and the right to appeal the final agency decision to the MSPB (not the EEOC). Under mixed case complaint processing, a complainant is not entitled to a hearing before an EEOC AJ. Here, the Agency informed Complainant of the right to request an EEOC hearing in error and later corrected its error. The Agency issued a final decision on the merits of the complaint, finding no discrimination, and informing Complainant of the right to file an MSPB appeal. However, Complainant did not file an MSPB appeal of the final decision. We find that the AJ appropriately dismissed Complainant’s hearing request. The instant complaint is a mixed case complaint that has exhausted administrative processing and contains the same claim that is pending before or has been decided by the Agency or Commission. 29 C.F.R. § 1614.107(a)(1). 2 In the October 2018 removal action, the Agency informed Complainant of the right to elect to file a union grievance, a Merit Systems Protection Board appeal, an EEO complaint, or a grievance through an Agency fair treatment process. 3 We note MSPB does not have record of an appeal related to the October 2018 removal of Complainant. 2021001963 3 CONCLUSION After careful review of the record, we AFFIRM procedural dismissal of the instant matter. 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. 2021001963 4 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 July 28, 2021 Date