Robert L. Wilson, Complainant,
v.
Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Appeal No. 0120122103
Hearing No. 540-2012-00016X
Agency No. 200J-0777-2011101987
September 10, 2012
 
DECISION
 
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 11, 2012, holding in abeyance 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 a Health Education Specialist at the Agency's Employee Education System (EES), Employee Education Resource Center (EERC) in Salt Lake City. On September 15, 2012, he filed a formal complaint, as amended, which the Agency defined as alleging Complainant was discriminated based on his sex (male), age (56) and reprisal for prior protected EEO activity when:
1. on January 21, 2011, the Deputy Director, EES Field Operations denied his request for interim reasonable accommodation; and
2. on March 17, 2011, the Deputy Director, EES Field Operations denied his request for reasonable accommodation.
 
In his transcribed affidavit taken in August 2011 Complainant asked to add the basis of disability and stated that the accommodation request he made that was twice denied above in writing was to work within commuting distance of his home in Albany, California. Following an investigation Complainant requested a hearing before an EEOC Administrative Judge (AJ). Meanwhile, in January 2012 he filed an appeal with the Merit Systems Protection Board (MSPB)1 alleging that he was discriminated against based on his sex, age, and reprisal for prior EEO activity when he was removed effective December 30, 2011.2 He wrote in his appeal form that his request for reasonable accommodation was denied and he was seeking reinstatement with a location at or near Albany, California.
 
On March 5, 2012, the EEOC AJ dismissed Complainant's complaint. The AJ reasoned that because Complainant's complaint was mixed he was not entitled to a hearing before the EEOC. 29 C.F.R. § 1614.302(d)(2). A mixed case complaint is an EEO complaint of employment discrimination on an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a). The AJ ordered that if the MSPB finds no jurisdiction over Complainant's discrimination claims the Agency shall promptly recommence processing his complaint as a non-mixed EEO complaint, pursuant to 29 C.F.R. § 1614.302(c)(2)(ii). The AJ directed that in such an event the Agency shall promptly notify Complainant that he has the right to request a hearing form the EEOC, and if he does so, the complaint would be reopened in its present status.
 
By letter dated April 11, 2012, the Agency notified Complainant that pursuant to 29 C.F.R. § 1614.302(c)(2)(ii), it was holding his complaint in abeyance pending a decision by the MSPB on his removal claim. The Agency advised that after the MSPB issues a decision on his removal claim the Agency would either dismiss his complaint pursuant to 29 C.F.R. § 1614.107(a)(4), or if the MSPB does not assume jurisdiction, recommence processing of his case. It further advised it would recommence processing when Complainant notified the Agency of the MSPB's final decision on his case.
 
On appeal Complainant argues that his appeal to the MSPB concerned his removal, not the accepted issues in the complaint.
 
In opposition to the appeal the Agency argues that Complainant's complaint is mixed because it is raises the same or similar claims which are intertwined with the MSPB appeal. It argues that under 29 C.F.R. § 1614.302(c)(2)(ii), the Agency's decision to hold Complainant's complaint in abeyance is not appealable to the EEOC, and hence it has not issued a final decision from which an appeal can be taken.
  
ANALYSIS AND FINDINGS
 
EEOC Regulation 29 C.F.R. § 1614.302(c)(2)(h) provides that where the agency or the MSPB AJ questions the MSPB's jurisdiction over the appeal on the same matter, the agency shall hold the mixed case complaint in abeyance until the MSPB's AJ rules on the jurisdictional issue.
 
In EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 4, Sec. II. B.4.d (located at pages 4-5, 4-6) (EEO-MD-110) (November 9, 1999), the Commission advised that where a complainant has pending a non-mixed case complaint or a series of non-mixed complaints and the claims in those complaints are inextricably intertwined with an appeal on a claim that is appealable to the MSPB, the agency should file with the MSPB a motion to consolidate the non-mixed case claim with the mixed case appeal. As an example the Commission wrote that an allegedly discriminatory performance evaluation and subsequent placement on a PIP are non-mixed claims that may culminate in a removal, which is appealable to the MSPB. Chap. Sec. II.B.4.d was deleted by the Commission in EEOC Equal Employment Opportunity Management Bulletin EEO-MB 100-1 (October 24, 2003). The Commission explained that the EEOC's Office of Federal Operations was notified by the MSPB that the deleted language improperly advised parties on MSPB procedures and jurisdiction because it constituted a request for an MSPB Judge to hear matters which may not be within the jurisdiction of the MSPB. The doctrine of inextricably intertwined was effectively overturned because the MSPB generally does not have jurisdiction over non-appealable matters, even if they are connected with appealable matters. We note, however, that a proposed action merges with the decision on an appealable action, i.e., a proposed removal merges into a decision to remove.
 
EEOC Regulation 29 C.F.R. § 1614.302(c)(2)(ii) does not apply to Complainant's complaint because his appeal to the MSPB was on his performance based removal effective December 30, 2011, not his requests for reasonable accommodation that were formally denied much earlier, on January 21, 2011 and March 17, 2011.3 This is not a situation where Complainant filed both an EEO complaint and MSPB appeal on a constructive removal and the parties are awaiting a determination from the MSPB on whether it has jurisdiction over the removal, a more typical scenario addressed by the regulation. The MSPB has no jurisdiction over Complainant's reasonable accommodation requests to relocate and do some other things4 because unlike a performance based removal, they do not constitute appealable matters. Because 29 C.F.R. § 1614.302(c)(2)(ii) does not apply, we construe the Agency's April 11, 2012, letter to be a final decision dismissing Complainant's complaint. The final decision is REVERSED.
  
CONCLUSION
 
The AJ's Order dated March 5, 2012, and the Agency's letter dated April 11, 2012, which we construe as a final decision, are REVERSED. The Agency shall comply with the order below.
  
ORDER
 
The processing of Complainant's complaint shall recommence under 29 C.F.R. Part 1614 as a non-mixed complaint. The Agency shall resubmit to the Hearings Unit of the appropriate EEOC district office Complainant's request for a hearing within fifteen (15) calendar days of the date this decision becomes final along with an explanation that it is doing so pursuant to this decision. The Agency shall include with the submission a copy of this decision, the complete hearing record in EEOC Hearing No. 540-2012-00016X, and the complaint file and report of investigation. Thereafter, the AJ shall process the hearing request and issue a decision 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.
 
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 that the Agency made the submissions to the hearing unit, as ordered.
  
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
 
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
  
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 (Z0610)
 
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
 
 
FOR THE COMMISSION:
 
Carlton M. Hadden
Director
Office of Federal Operations
Footnotes

1

The EEOC called the MSPB to get the docket number of Complainant's appeal to the MSPB. It is DE-0432-12-0130-I-1.

2

In a final Agency decision on prior complaint 200P-0777-2011104491 the Agency wrote the removal was a performance based action.

3

On June 24, 2011, Complainant submitted a letter to the Agency's Office of Resolution Management contending that his request to telework from a location near his home was denied in writing by correspondence dated May 16, 2011. He included the correspondence which denied his request to relocate to one of four locations. The record does not reflect what action, if any, the Agency took on this correspondence.

4

According to the Agency's March 17, 2011, denial, Complainant also requested reasonable accommodation on how he was supervised and directions were given to him, and training. It is not clear whether Complainant intended his complaint to include these matters.