Venetta S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionSep 9, 20202020000414 (E.E.O.C. Sep. 9, 2020) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Venetta S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020000414 Agency No. ARRUCKER19JUN02066 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 1, 2019, dismissing her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Instructional Systems Specialist, GS-12, at the Agency’s Training and Education Division facility in Fort Rucker, Alabama. On July 18, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal when: 1. On September 11, 2018, the Training Development Chief (“S1”) issued Complainant a counseling statement for unprofessional behavior and going outside the chain of command; 2. On February 27, 2019, S1 issued a Notice of Pending Termination; 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. 2020000414 2 3. On April 8, 2019, S1 responded to her request for the Reasonable Accommodation of telework; 4. On April 17, 2019 and April 19, 2019, S1 issued a Proposal for Removal; 5. On May 17, 2019, the Director of Training (“the Director”) issued a Decision for Removal; and 6. On May 20, 2019, the Director issued a second Decision for Removal. The Agency dismissed claims 2, 4, 5 and 6 for filing an appeal with the Merit Systems Protection Board (MSPB); and claims 1 and 3 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed. In her appeal, Complainant states she originally contacted the EEO counselor in September 2018, and provides emails relating to her contacts. 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 that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). A complainant may pursue a mixed case complaint with the Agency under to EEO complaint process or an appeal on the same matter with the MSPB, but not both. 29 C.F.R. § 1614.302(b). Additionally, 29 C.F.R. § 1614.107(a)(4) allows for the dismissal of complaints where a Complainant has raised the same matter in an appeal to the MSPB and has indicated that she has elected to pursue the non-EEO process. In the instant case, it is clear that Complainant pursued the MSPB process with respect to her termination. The record contains a copy of her appeal to the MSPB, and we note that a petition for review of the MSPB’s decision is currently pending with this Commission. See EEOC Petition No. 2020003135. We take administrative notice that the records in Petition No. 2020003135 contain a copy of the MSPB Initial Decision (MSPB No. AT-0752-19-0573-I-1), which was issued on February 10, 2020. Therein, the MSPB Administrative Judge addressed Complainant’s termination (claims 2, 4, 5 and 6 of his subsequent EEO complaint), as well as issues inextricably intertwined with the termination - the reasonable accommodation issue (claim 3) and the letter of counseling (claim 1). As such, we find that the entire complaint must be dismissed as having been pursued before the MSPB. Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2020000414 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020000414 4 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 September 9, 2020 Date Copy with citationCopy as parenthetical citation