U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deangelo C.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement (ICE)), Agency. Appeal No. 0120152120 Agency No. HS-ICE-01822-2014 DECISION On June 3, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 30, 2015, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator with ICE, Homeland Security Investigations in Buffalo, New York. On September 18, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him based on disability when he was terminated on July 7, 2014. On August 7, 2014, the same date that he initiated contact with an equal employment opportunity (EEO) counselor, Complainant appealed his removal to the Merit Systems Protection Board. Thereafter, on September 18, 2014, Complainant filed his formal complaint. The Agency dismissed the complaint on the grounds that Complainant elected to pursue his termination with the MSPB by filing an appeal there before filing a formal EEO complaint on the same matter. 29 C.F.R. § 1614.107(a)(4). In its removal decision to Complainant, the Agency provided Complainant appeal rights. Specifically, the Agency advised: If you feel this adverse action is motivated by discrimination... you may include this allegation when appealing to the MSPB or you may initiate a discrimination complaint by seeking pre-complaint counseling form your local EEO Counselor or EEO Officer.... If you elect to pursue this matter through the EEO process, it will be deemed a "mixed case complaint," and upon acceptance of your formal complaint of discrimination you will be advised of the mixed processing procedures...." EEOC Regulation 29 C.F.R. § 1614.107(a)(4) requires the dismissal of an EEO complaint where the complainant has filed an appeal with the MSPB and 29 C.F.R. § 1614.302 indicates that the complainant elected to pursue the non-EEO process. EEOC Regulation 29 C.F.R. § 1614.302 provides that an agency shall inform every employee who is the subject of an action that is appealable to the MSPB and who has either orally or in writing raised the issue of discrimination during the processing of the action of the right to file either a mixed case complaint with the agency or to file a mixed case appeal with the MSPB. It provides that the person shall be advised that he may not initially file both a mixed case complaint and an appeal on the same matter and that whichever is filed first shall be considered an election to proceed in that forum. On appeal, Complainant argues that he was not informed at the time of filing of the difference between filing an EEO complaint as a mixed case and filing an MSPB appeal, and was advised that the best course of action was to file a mixed case. He argues that he filed his EEO complaint at the same time that he filed his MSPB appeal. A review of the record shows that complainant appealed his removal to the MSPB prior to filing his formal EEO complaint on the same matter. The election occurs with filing of the appeal or formal complaint, not initiating EEO counseling. Complainant initiated EEO counseling on August 7, 2014, the same day he filed his appeal with the MSPB, and he did not have his initial interview with the counselor until August 25, 2014, after filing his MSPB appeal. Given these circumstances, we find complainant elected, under the above regulations, to file his appeal with the MSPB. Accordingly, the FAD is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 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, 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 (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 13, 2015 __________________ Date 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 The record does not reflect when Complainant received the FAD, and the record copy of the FAD does not contain any language notifying Complainant of his appeal rights. Accordingly, we deem the appeal to be timely filed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152120 2 0120152120