* * *, Complainant,
v.
John P. Salazar, Chair, Inter-American Foundation, Agency.
Appeal No. 0120132968
Agency No. IAF-20I3-02
January 8, 2014
 
DECISION
 
On July 24, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 24, 2013, dismissing her complaint of unlawful employment discrimination in violation of the Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. and 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 Human Resources Specialist at the Agency's Office of Operations in Washington, DC.
 
On March 27, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her based on her race (Caucasian), sex (female), religion (Christian), color (White), age (54 and 55), and reprisal for prior protected equal employment opportunity (EEO) activity under Title VII when:
1. On or about April 23, 2012, she was hired as a GS-13 instead of a GS-14;
2. She was not issued a computer nor granted access to the Agency's Network for one month after she started working;
3. On July 13, 2012, her request to move to a different location was denied;
4. On July 13, 2012, she was temporarily placed under the supervision of the General Counsel;
5. On October 10, 2012, her first line supervisor informed her that she would be interviewed by an investigator without prior notice; which prevented her from attending the Agency's celebration picnic;
6. Her immediate supervisor did not acknowledge her expertise and authority as a human resources specialist on input she gave: a) on May 16, 2012, on the termination of an employee under a probation period, b) on October 24, 2012, on keeping medical documents and discussions confidential, c) in early October 2012, on an external candidate's application, and d) on December 6, 2012, on securing clearance for a transferring employee; and was told to "think outside the box";
7. On October 19, 2012, her supervisor entered her cubical and demanded that she open her email account and look for a specific email message, and then "aggressively" pulled the computer mouse out of her hands and made a comment, "you are being old and slow";
8. On October 19, 2012, her supervisor directed her not to go outside the building while he and other male employees were allowed to leave the building for lunch and breaks;
9. On December 4, 2012, her first line supervisor denied her request to use accrued credit hours in lieu of sick leave, screamed at her, and blocked her exit from the conference room while discussing her leave request;
10. On December 5, 2012, she arrived at her first line supervisor's office four minutes early for a teleconference at 2 PM; her supervisor asked her to leave and come back at 2 PM, and when she returned at 2:02 PM the supervisor pointed out that she was late;
11. On December 6, 2012, her first line supervisor presented her with a document [a December 4, 2012, Letter of Caution] and demanded that she sign it without first allowing her to read the document; and when she refused to sign it, he told her that she was dismissed and ordered four security guards to escort her out of the building;
12. On December 12, 2012, her first line supervisor scheduled a meeting for her with an EEO representative to discuss the MD-715 report without consulting with her regarding her availability;
13. On December 12, 2012, her first line supervisor called her into his office and informed her that the Agency's President decided to keep her under his supervision;
14. On December 17, 2012, she submitted a completed CA-1 form with medical documentation to the Agency's Workers Compensation Specialist and the Agency failed to submit the CA-1 form to the Department of Labor (DOL) in a timely manner;
15. On January 16, 2013, prior to DOL receiving and assigning a case number, her first line supervisor controverted her workers compensation claim; and
16. On January 16, 2013, her first line supervisor changed her timecard from Annual Leave to Absence Without Leave (AWOL) [and she was charged AWOL from dates in December 2012 onward].1
 
Initially, on April 25, 2013, the Agency partially accepted the complaint.2
 
Thereafter, the Agency issued Complainant a notice of proposed removal dated March 25, 2013, charging her with AWOL from December 20, 2012, to March 25, 2013, and thereafter upheld the charge and removed her effective May 3, 2013. In finding that the penalty of removal for the charge was proper, the Agency weighed "Douglas Factors," which included her past work record, performance, ability to get along with fellow employees, and dependability. The Agency found, among other things, that Complainant had significant conflict with her former supervisor and was not dependable.
 
On June 2, 2013, Complainant appealed her removal to the Merit Systems Protection Board (MSPB). Therein, she alleged that her leave was improperly characterized as AWOL, and that after being hired she was unable to efficiently and effectively perform her duties, noting some of the incidents above. She alleged age discrimination and reprisal for prior EEO activity.
 
On June 24, 2013, the Agency dismissed all of Complainant's complaint for raising the same matter in her appeal to the MSPB. It citied to 29 C.F.R. § 1614.107(a)(4) and .302(b), and found that Complainant's non-appealable matters to the MSPB were inextricably intertwined with her appealable matter of removal for AWOL, citing two EEOC cases.
 
In an initial decision dated November 7, 2013, the MSPB dismissed the appeal without prejudice, subject to automatic reopening on January 10, 2014. Therein the only action the MSPB characterized as being appealed was the removal.
  
ANALYSIS AND FINDINGS
 
As an initial matter, we affirm the Agency's dismissal of incidents 14 and 15 on a ground different than the one cited by the Agency. Incidents 14 and 15 fail to state a claim because they are a collateral attack on the DOL Office of Workers' Compensation Programs (OWCP) process and forum. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Concerns regarding the processing of workers compensation should be addressed with the OWCP, not in the EEO process.
 
The Agency's decision to dismiss the complaint for raising the same matter in her appeal to the MSPB is reversed. EEOC Regulation 29 C.F.R. § 1614.107(a)(4) requires the dismissal of a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates the complainant has elected to pursue the non-EEO process. Because Complainant filed her complaint first, § 1614.302 does not indicate that Complainant elected to pursue the MSPB forum on the matters raised in her EEO complaint.
 
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) (Nov. 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. Wilson v. Department of Veterans Affairs, EEOC Appeal No. 0120122103 (Sept. 10, 2012).
 
The Agency's finding that the non-appealable matters in Complainant's EEO complaint are inextricably intertwined with the matter she could and did appeal to the MSPB - her removal, is not persuasive. We refer to legal history regarding the doctrine of inextricably intertwined discussed above.
 
Regarding AWOL, we note that if the MSPB reverses the removal, it is very likely it would not remedy the AWOL charge by ordering, for example back pay (Complainant argues she should have been on administrative leave) because it has not taken jurisdiction over the characterization of Complainant's leave. However, if the MSPB upholds the removal and in doing so finds that Complainant's leave was properly categorized as AWOL, the Agency could argue in the EEO forum that the doctrine of issue preclusion applies to the characterization of Complainant's leave as AWOL.
  
CONCLUSION
 
The Agency's dismissal of incidents and issues 14 and 15, listed above, is AFFIRMED. The Agency dismissal of the remainder of the complaint in its June 24, 2013, FAD is REVERSED.
  
ORDER (E0610)
 
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
 
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
  
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.
  
STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610)
 
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (T0610) 'This de1cision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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 Vll 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

We added the language in brackets in incidents 11 and 16 to better reflect Complainant's claims.

2

Specifically, the Agency accepted for investigation Complainant's claim of harassment/hostile work environment as noted in incidents 1 through 16, but dismissed incidents 1 through 5, as individual discrete claims for failure to timely initiate EEO counseling. On appeal the parties are represented by counsel and do not address this matter. Accordingly, it is not before us.