U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Freddie M.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 0120141374 Agency No. NPS120104 DECISION On February 27, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's March 27, 2013, final decision (FAD)2 concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the complaint is partially REMANDED to the Agency, and partially DISMISSED. ISSUES PRESENTED Did the Agency properly issue a FAD with appeal rights to the Merit Systems Protection Board (MSPB) for all of Complainant's claims, and not just matters appealable to the MSPB? BACKGROUND At the time of events giving rise to this complaint, Complainant was a former Park Ranger who worked at the Mesa Verde National Park in Mesa Verde, Colorado. On October 24, 2011 and January 24, 2012, Complainant filed EEO complaints alleging that the Agency discriminated against him on the bases of race (Mexican/Mescalero), color (Brown), disability (obsessive compulsive disorder), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. On several dates from May through October 18, 2011, Complainant was treated disparately regarding time and attendance; 2. On several dates from June through October 17, 2011, Complainant was not reasonably accommodated for his OCD; 3. On July 3, 2011, Complainant was treated disparately regarding assignment of duties; 4. On September 12, 2011, a management official told Complainant that the mandatory retirement age is 57, and suggested that he retire; 5. On November 18, 2011, Complainant was issued a Notice of Proposed Removal and subsequently removed from Federal service on December 23, 2011. At the conclusion of the investigation into the allegations, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.302(d)(3) advising Complainant that he could appeal to the MSPB if he was dissatisfied with the outcome of the FAD. The decision concluded that Complainant did not prove that the Agency subjected him to the alleged discrimination, and according to documentation submitted by the Agency, Complainant appealed the FAD to the MSPB on February 27, 2014, the same day he submitted his appeal to the Commission, and his appeal was designated MSPB Appeal No. DE-0752-14-0234-I-1. Research for the case number revealed that the case was dismissed without prejudice, and reopened under docket number DE-0752-14-0234-I-2. The MSPB issued a decision on April 23, 2015 reversing the Agency's removal of Complainant, and also finding that Complainant was improperly placed on Absent Without Leave (AWOL) and denied reasonable accommodation, mainly claims (1), (2) and (5) of the complaint. Based on the decision, the MSPB addressed claim (5) because it was an appealable action, and claims (1) and (2) because they formed the basis for the Agency's removal action. CONTENTIONS ON APPEAL The Agency argues on appeal that the complaint should be dismissed because Complainant was given appeal rights to the MSPB and appealed the FAD to the MSPB. Complainant's contentions on appeal addressed the merits of his discrimination complaint. ANALYSIS AND FINDINGS The Agency treated the complaint as a mixed case complaint, and issued Complainant a FAD with appeal rights to the MSPB on all of Complainant's allegations. A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). The complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address. Id. If a complainant is dissatisfied with the Agency's final decision on a mixed case complaint, the complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the Agency's final decision. 29 C.F.R §1614.302(d)(1)(ii). When a complaint contains both appealable and non-appealable matters, the non-appealable issues should be processed separately from issues appealable to the MSPB. See Lethridge v. U.S. Postal Serv., EEOC Appeal No. 07A40076 (Nov. 29, 2004), req. for recon den'd, EEOC Request No. 05A50399 (Feb. 9, 2005) (citing, Caldwell v. Office of Pers. Mgmt., EEOC Request No. 05910649 (Sep. 6, 1991)). Further, "because the MSPB does not have jurisdiction to hear non-appealable matters, complaints not containing those matters should be processed by the agency under the 1614 process and not mixed with matters that are appealable to the MSPB through amendment, consolidation or held in abeyance." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 4 § II.B (Aug. 5, 2015). The Agency processed Complainant's consolidated complaints as a mixed case complaint, and issued Complainant appeal rights in its FAD to the MSPB for all of Complainant's claims, not just for the allegation (5), which seems to be the only allegation appealable to the MSPB. See 5 C.F.R. § 1201.3. The Agency submitted evidence that Complainant submitted an appeal to the MSPB dated February 27, 2014, the same day that he submitted an appeal to the Commission. As a result, the Commission does not have jurisdiction to address Complainant's appeal of allegation (5) because the Agency correctly provided Complainant with appeal rights to the MSPB for that allegation. 29 C.F.R. § 1614.302(d)(3) ("At the time that the agency issues its final decision on a mixed case complaint, the agency shall advise the complainant of the right to appeal the matter to the MSPB (not EEOC) within 30 days of receipt and of the right to file a civil action as provided at § 1614.310(a)").3 However, several of Complainant's claims which the MSPB did not address, claims (3) and (4), are non-appealable actions, meaning they cannot be appealed to the MSPB due to lack of jurisdiction. See 5 C.F.R. § 1201.3. The Agency improperly consolidated the complaints and did not separately process the non-appealable issues under the § 1614 process, which would have resulted in Complainant having the choice between a hearing before an AJ or an Agency FAD. See, e.g., Chasity v. Dep't of Homeland Security, EEOC Appeal No. 0120140557 (Nov. 4. 2016) (advising that the agency should have bifurcated the complainant's non-mixed allegations from her mixed allegations and issued a FAD with appeal rights to the MSPB only for the mixed allegation, providing the option for an EEOC hearing for the non-mixed allegations, in a case where the MSPB dismissed for lack of jurisdiction). Non-appealable actions should have been bifurcated from the appealable action, with appeal rights to the MSPB only for appealable actions. Therefore, the Agency should process claims (3) and (4) under the § 1614 process, providing Complainant with the option to request a hearing before an EEOC AJ. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, claims (3) and (4) are REMANDED for further processing, and claims (1), (2) and (5) are DISMISSED. ORDER Within one hundred and twenty (120) calendar days of the date this decision becomes final, the Agency is ordered to notify Complainant of his right to request a hearing and decision from an EEOC Administrative Judge, or his right to request an immediate final agency decision pursuant to § 1614.110 with appeal rights to the EEOC. See 29 C.F.R. § 1614.108(f). 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 (M0416) 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. The requests 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 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 (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 (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 12-16-16 __________________ 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 According to the Agency, the FAD was reissued on May 20, 2014, after Complainant claimed he did not receive the FAD. 3 Individuals who receive a final decision from the MSPB on a mixed case complaint may petition the EEOC to consider that decision. 29 C.F.R. § 1614.303(a). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141374 6 0120141374