[Redacted], Raymond G., 1 Complainant,v.Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020002089 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raymond G.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 2020002089 Hearing No. 570-2019-00155X Agency No. NCN-18-HQ-00028 DECISION Complainant filed an appeal with this Commission from the Agency’s December 9, 2019, final decision concerning 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. For the reasons set forth herein, the Agency’s final decision is VACATED. At the time of the events giving rise to his complaint, the Agency employed Complainant as a Supervisory Information Technology Specialist, GS-15, at its Headquarters. On February 2, 2018, Complainant filed a complaint alleging that he was discriminated against based on race (African American) and reprisal (prior EEO activity) when he was subjected to a hostile work environment and demoted from his position to the position of Printing Officer, effective November 12, 2017. The Agency accepted Complainant’s hostile work environment claim as a non-mixed case under Agency Case Number NCN-l8-HQ-00028, and accepted Complainant’s demotion claim as a mixed case complaint under Agency Case Number NCN-18-HQ-00008. 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. 2020002089 2 Complainant’s hostile work environment claim consisted of the following incidents: 1. On unspecified dates (beginning at least as early as June 2017), Complainant was made to perform additional job functions. 2. On unspecified dates, Complainant was required to complete unattainable tasks. 3. On November 12, 2017, Complainant was subjected to harsher punishment for perceived performance failure. After the Agency’s investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) on his hostile work environment claim, and he filed an appeal with the Merit Systems Protection Board (MSPB) on his demotion claim. A MSPB Administrative Judge issued an initial decision dismissing Complainant’s appeal on August 19, 2019, on the grounds that Complainant failed to prosecute his demotion claim. Complainant filed a petition for review of that decision with the MSPB’s full Board, and that matter is still pending. Afterward, the Agency, in October 2019, filed a Motion to Dismiss Complainant’s hostile work environment claim arguing that Complainant elected “to proceed at MSPB regarding the same matter.” On October 30, 2019, the AJ dismissed the hearing request and remanded the matter to the Agency to issue a final decision with appeal rights to MSPB. On December 5, 2019, the Agency issued a final order accepting the AJ’s decision, and, on December 9, 2019, issued a final decision. The final decision dismissed claim 3, as being the same issue set forth in Complainant’s demotion claim and found no discrimination with respect to claims 1 and 2. The decision indicated, in pertinent part, that: [a] notice is attached to this Decision informing Complainant of the right to appeal to the Merit Systems Protection Board (MSPB) or to file a civil action in federal district court. Also, a copy of MSPB Form 185 is attached for Complainant’s submission to the appropriate Regional Office of the MSPB, should Complainant decide to file an appeal. Notwithstanding the above language, the Agency mistakenly enclosed an attachment giving Complainant the right to appeal to the EEOC, not the MSPB as it indicated to Complainant. On March 12, 2020, the Agency provided Complainant with the appeal rights to the MSPB and apologized for its error. Accordingly, we find that under the regulations, the Commission has no jurisdiction to consider Complainant’s appeal since his appeal rights are to the MSPB, not the Commission. We find, in this case, however, that since the Agency initially gave Complainant the wrong appeal rights, the Agency should reissue the final decision with the appropriate appeal rights. 2020002089 3 CONCLUSION The Agency’s final decision is hereby VACATED. The Agency is directed to take the action as set forth in the Order below. ORDER Within thirty (30) days of the date this decision is issued, the Agency shall reissue its decision accepting the AJ’s October 30, 2019 decision and provide Complainant with his appeal rights to the MSPB. 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. 2020002089 4 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). 2020002089 5 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 May 19, 2021 Date