[Redacted], Rosena J., 1 Complainant,v.Dr. Kilolo Kijakzai, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2020003385 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosena J.,1 Complainant, v. Dr. Kilolo Kijakzai, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003385 Hearing No. 570-2017-00273X Agency No. ODAR-15-0226 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final action dated April 6, 2020,2 concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission REVERSES the Agency’s final action and REMANDS the complaint for further processing. ISSUE The issue is whether the EEOC Administrative Judge properly dismissed Complainant’s hearing request. 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 EEOC regulations state that an Administrative Judge’s (AJ’s) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). The AJ issued her decision on February 26, 2020, and the Agency did not issue a final order. As such, the AJ’s decision became the Agency’s final action on April 6, 2020. 2020003385 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor at the Agency’s Office of Appellate Operations, Office of Disability Adjudication and Review in Arlington, Virginia. On February 24, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination. Complainant amended her complaint multiple times, resulting in staggered investigations. The initial investigation began in July 2015, while the last claim to be added, claim 9, was accepted in November 2016. The Agency framed the claims as follows: 1. Complainant was subjected to disparate treatment on the basis of disability (mental) when, beginning in May 2013 and ongoing, she has been denied a reasonable accommodation by management; 2. Complainant was subjected to non-sexual harassment (hostile work environment) on the basis of her disability when, from June 2013 through April 2015, she was placed on performance plans, denied leave and telework, upbraided, not selected for a promotion, and her work interrupted by being startled or surprised; 3. Complainant was subjected to disparate treatment based on disability and in reprisal for prior EEO activity when, on April 2, 2015, she learned that she was reassigned to a different branch; 4. Complainant was subjected to disparate treatment based on disability and in reprisal for prior EEO activity when, on April 2, 2015, she was notified that her reasonable accommodation request to telework was denied; 5. Complainant was subjected to disparate treatment based on disability and in reprisal for prior EEO activity when, on April 2, 2015, she became aware that her request to extend her Family and Medical Leave Act leave was denied; 6. Complainant was subjected to disparate treatment based on disability and in reprisal for prior EEO activity when, on April 2, 2015 and April 21, 2015, she received a Return to Work Notice that contained confidential medical information that was allegedly placed in her “7B” Personnel File; 7. Complainant was subjected to disparate treatment based on disability and in reprisal for prior EEO activity when, during April 2015, she was allegedly charged absence without leave (AWOL); 8. Complainant was subjected to disparate treatment based on disability and in reprisal for prior EEO activity when, on May 1, 2015, she received a performance appraisal that reflected a summary rating of “Not Successful” for fiscal year 2014; and 2020003385 3 9. the Agency subjected Complainant to disparate treatment in reprisal for prior EEO activity when, on October 1, 2015, she was issued a Proposal to Remove letter.3 On October 18, 2016, Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Prior to her EEOC hearing, on April 26, 2016, the Agency issued Complainant a second Notice of Proposal to Remove. On July 8, 2016, the Agency sustained Complainant’s removal for one charge, with 49 specifications, of AWOL and Failure to Comply with Leave Procedures. Complainant appealed her removal to the Merit Systems Protection Board (MSPB) on August 2, 2016.4 Following a hearing, the MSPB AJ issued an Initial Decision on Complainant’s appeal for MSPB Docket Nos. DC-0752-16-0778-I-2 and DC-0752-16-0660-I-2 on September 11, 2017.5 The MSPB AJ found that Complainant’s removal was proper, based on the charges of AWOL and failure to follow leave procedures. The MSPB AJ noted that Complainant raised affirmative defenses of discrimination based on disability and in retaliation for requesting a reasonable accommodation. The MSPB AJ found that, while Complainant was a qualified individual with a disability and engaged in protected EEO activity, she did not establish that discrimination or retaliation was a factor in her removal. The MSPB AJ also found that Complainant did not prove that the Agency failed to provide a reasonable accommodation. The MSPB AJ determined that Complainant’s assertions that she requested reasonable accommodations prior to October 21, 2014, were not credible. The MSPB AJ also found that the Agency engaged in the interactive process and offered Complainant different cubicles as accommodations, while Complainant did not engage in good faith. For example, Complainant appeared to be deceptive when responding to her supervisor’s questions regarding her reasonable accommodation request, stating that she provided her responses by slipping a copy under his door and via email. Complainant’s supervisor denied receiving the responses. 3 The proposed removal for Complainant’s unacceptable performance was initially issued in August 2015, and a decision to remove Complainant was issued in September 2015. Complainant requested additional time to respond, explaining that she did not receive the August 2015 proposal. Consequently, the Agency re-issued the proposal notice in October 2015. The Agency subsequently rescinded the decision to remove Complainant. 4 Because it is material to the instant appeal, we discuss the proceedings before the MSPB in some detail. 5 The MSPB AJ noted that Complainant filed a separate appeal regarding a constructive suspension, and he combined the two appeals. The MSPB AJ found that the MSPB did not have jurisdiction over Complainant’s constructive suspension claim. 2020003385 4 The MSPB AJ concluded that Complainant did not establish an affirmative defense of disability discrimination or retaliation for engaging in the EEO process and affirmed Complainant’s removal. Complainant filed a petition for review of the Initial Decision with the MSPB. As for Complainant’s EEO case pending before an EEOC AJ, on May 3, 2018, the Agency filed a Motion to Dismiss, or Alternatively Preclude Previously Litigated Issues. The Agency asserted that the entirety of Complainant’s claims was previously litigated before the MSPB. Specifically, the Agency noted that, in appealing her removal before the MSPB, Complainant alleged disability discrimination, retaliation for prior protected EEO activity, and the denial of a reasonable accommodation. Complainant opposed the Agency’s motion, on May 18, 2018, arguing that her prior proceedings before the MSPB did not justify preclusion of the issues currently before the Commission. Complainant asserted that because her petition for review was still pending, as the MSPB had not issued a Final Order, the Agency’s estoppel argument was premature. On February 26, 2020, the EEOC AJ issued an Order of Dismissal of EEOC Hearing Request Without Prejudice. The EEOC AJ noted that, because Complainant did not include her removal claim in her EEO complaint, it was not a traditional mixed-case complaint: the claims in Complainant’s EEO complaint were raised as an affirmative defense in her MSPB appeal. The EEOC AJ stated that the Commission does not recognize the continued processing of non-mixed allegations while the MSPB simultaneously adjudicates the mixed issue, to avoid inconsistent or conflicting treatment of the same issues. In addition, the EEOC AJ stated that the Commission has recognized that, while the MSPB may not formally assert jurisdiction over non-mixed allegations, it may need to analyze them in order to adjudicate the claim before the MSPB. The EEOC AJ observed that, although one remedy to this potential problem was for the Agency to argue issue preclusion, such opportunity may be foreclosed if the EEOC and MSPB processes proceeded simultaneously and a decision by the EEOC AJ was already issued. The EEOC AJ concluded that the most prudent course of action was for the Agency to hold the non-mixed issues in abeyance until the MSPB issued a final decision. Consequently, Complainant’s hearing request was dismissed without prejudice and the EEOC AJ advised Complainant that she could reinstate her hearing request within 30 days from the date the MSPB issued a final decision. Complainant filed the instant appeal and submitted a brief in support of her appeal. The Agency did not submit a response to Complainant’s appeal. CONTENTIONS ON APPEAL Through her attorney, Complainant argues that the AJ erred when she dismissed the hearing request, which is tied to the eventual issuance of a final MSPB decision and amounts to an indefinite suspension of the processing of the instant complaint. 2020003385 5 Complainant notes that the MSPB does not currently have a quorum to issue final decisions and there is no anticipated date for a quorum. Complainant asserts that EEOC AJs have no explicit authority to dismiss complaints “without prejudice.” Complainant notes that an EEOC AJ may hold a hearing in abeyance, but this authority is strictly limited to circumstances based on illness, military assignment, or other good cause. Complainant states that the Commission found that a “dismissal without prejudice” is improper in Dettling v. Dep’t of Commerce, EEOC Appeal No. 01A12392 (Nov. 28, 2001) and Spellman v Dep’t of Homeland Sec., EEOC Appeal No. 0120103173 (Jan. 4, 2013). Complainant argues that the EEOC AJ’s concern over the possibility that the MSPB’s final decision may make findings that prompt the Agency to raise the doctrine of issue preclusion is speculative. Further, Complainant asserts that the Commission has declined to delay adjudication while a petition for review is pending before the MSPB. See Patricia W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120172637 (Mar. 26, 2019). Lastly, Complainant contends that basic principles of fairness and equity should not allow the indefinite delay in the processing of her complaint. She requests that the Commission reverse the dismissal of her hearing request and remand the complaint for a hearing. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant requested a hearing before an EEOC AJ on a non- mixed EEO complaint and a separate mixed-case appeal with the MSPB regarding her removal. EEOC Regulation 29 C.F.R. § 1614.301(a)(1) defines a mixed-case complaint as a complaint of discrimination filed with an agency based on discrimination related to or stemming from an action that can be appealed to the MSPB. EEOC Regulation 29 C.F.R. § 1614.301(a)(2) provides that a mixed-case appeal is an appeal filed with the MSPB that alleges that an appealable agency action was effected, in whole or in part, because of discrimination. EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides, in pertinent part, that the Agency shall dismiss a complaint when the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the MSPB and § 1614.301 or § 1614.302 indicates that the complainant has elected to pursue the non-EEO process. Here, as noted above, Complainant raised an affirmative defense of discrimination in the appeal of her removal to the MSPB. The MSPB does not have jurisdiction over the claims in Complainant’s EEO complaint, such as a denial of reasonable accommodation. Standing alone, they could not be subject to dismissal for electing to pursue the matter before the MSPB. 2020003385 6 However, in this case, Complainant raised a failure to accommodate as an affirmative defense to the charges cited by the Agency in support of her termination, and the MSPB AJ found that the Agency did not fail to provide a reasonable accommodation. Because Complainant’s reasonable accommodation allegations (claims 1 and 4) were raised before the MSPB, they should be dismissed.6 The EEOC AJ dismissed Complainant’s hearing request to avoid inconsistent or conflicting treatment of the same issues. However, we find that the MSPB AJ’s decision did not fully address claims 2, 3, or 5 through 9. While the MSPB AJ discussed some of these claims within the context of Complainant’s removal7, he did not determine if they were discriminatory. Further, because the MSPB does not have jurisdiction to hear non-appealable matters, complaints containing non-appealable matters should be processed by the Agency under the Part 1614 process, and not mixed with matters that are appealable to the MSPB through amendment, consolidation, or being held in abeyance. See Complainant v. Inter-American Found., EEOC Appeal No. 0120132968 (Jan. 8, 2014). As such, we find that claims 2, 3, and 5 through 9, should continue to be adjudicated within the EEO process. Lastly, the Commission has found that, even if a complainant has claims pending before the MSPB, it is appropriate to not address those matters but to continue processing the claims that are not subject to the jurisdiction of the MSPB. See Patricia W., supra; request for recon. denied, EEOC Request No. 2019003714 (Oct. 11, 2019). Accordingly, the EEOC AJ’s dismissal of Complainant’s hearing request was improper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency’s final action on the AJ’s dismissal order and REMAND the complaint for further processing, in accordance with the Order below. ORDER The Agency shall submit to the Hearings Unit of the EEOC’s Washington D.C. Field Office the request for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Washington D.C. Field Office. Thereafter, the Administrative Judge shall issue a decision on claims 2, 3, and 5-9, in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 6 Complainant did not petition the Commission for review of the MSPB AJ’s decision. 7 The MSPB’s consideration of the alleged discrimination was related to the proposed removal issued in April 2016, based on AWOL and failure to comply with leave procedures, not the October 2015 proposed removal set forth in claim 9. 2020003385 7 The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” The report shall include supporting documentation verifying that the corrective action has been implemented. 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. 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. 2020003385 8 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 (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. 2020003385 9 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 August 30, 2021 Date