[Redacted], Tyree L., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Nov 18, 2021

Appeal No. 2021003351 (E.E.O.C. Nov. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyree L.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Headquarters), Agency. Appeal No. 2021003351 Agency No. HS-HQ-00207-2020 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 5, 2021, dismissing 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Staff Action Officer, GS-13, at the Agency’s Headquarters in Washington, D.C. On July 10, 2020, the Agency issued Complainant a Decision on Proposed Indefinite Suspension, effective the same day. The Decision provided information for appealing to the Merit Systems Protection Board (MSPB) and for contacting an Agency Equal Employment Opportunity (EEO) Counselor and also provided the statement that follows. This is a final decision. You have the right to contest this action through one of the avenues outlined . . . You may elect only one avenue, however, and your election will be considered final on the date any appeal or complaint is filed. . . . An election 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. 2021003351 2 will be deemed to have been made based upon which of the actions above is filed first. On August 7, 2020, Complainant filed a mixed case appeal with the MSPB, which was docketed as MSPB No. DC-0752-20-0789-I-1. Then, on August 8, 2020, Complainant initiated contact with an EEO Counselor. On September 15, 2020, an MSPB Administrative Judge (MSPB AJ) dismissed Complainant’s appeal as withdrawn. The MSPB AJ noted that Complainant stated that he wished to withdraw his MSPB appeal to pursue an EEO complaint on the matter and the MSPB AJ warned Complainant of the ramifications of withdrawal pursuant to election of the non-EEO process. Complainant continued to seek withdrawal and the MSPB AJ then “DISMISSED [the MSPB appeal] with prejudice to refiling.” On November 3, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Pakistani), and religion (Muslim) when, on July 10, 2020, it placed him on indefinite unpaid suspension. The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(4), for raising the matter in an appeal to the MSPB. The instant EEOC appeal from Complainant followed. On appeal, Complainant stated that an MSPB appeal no longer exists and did not exist when he filed his formal complaint. 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, disability, age, or genetic information related to or stemming from an action that is appealable to the MSPB. 29 C.F.R. § 1614.302(a)(1). 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 on the bases of race, color, religion, sex, national origin, disability, age, or genetic information. 29 C.F.R. § 1614.302(a)(2). An aggrieved person may initially file a mixed case complaint with an Agency or a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non-EEO process. Here, Complainant filed an MSPB appeal on August 7, 2020 and then filed an EEO complaint on November 3, 2020. In the July 10, 2020 Decision on Proposed Indefinite Suspension, the Agency informed Complainant of the right of election outlined in 29 C.F.R. § 1614.302(b). Here, we conclude that Complainant elected the MSPB (non-EEO) process by filing his MSPB appeal prior to his EEO complaint. Complainant’s withdrawal of his MSPB appeal does not alter our finding. Accordingly, we AFFIRM the Agency’s final decision. 2021003351 3 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). 2021003351 4 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 November 18, 2021 Date