U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ike D.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120140592 Hearing No. 451-2013-00178X Agency No. 2003-0671-2012103122 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated November 19, 2013, dismissing a formal complaint of unlawful employment discrimination alleging violations 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 Complainant worked as a Chaplain at the Agency's South Texan Healthcare System in San Antonio, Texas. Complainant was removed from Agency employment effective May 18, 2012, for events that occurred in November 2011. Complainant appealed his termination to the Merit Systems Protection Board (MSPB), and after a hearing on the merits of his appeal, the MSPB upheld his termination (MSPB Docket No. DA-0752-12-0411-I-1). The MSPB decision states that Complainant did not raise claims of discrimination or unlawful retaliation as part of his appeal. On August 17, 2012, Complainant filed a formal EEO complaint alleging that, from sometime in 2011 until his termination in May 2012, he was subjected to a ongoing harassment sufficient to create a hostile work environment on the bases of his race (Asian), national origin (East Indian), religion (Catholic), color, disability, and in reprisal for prior EEO activity. After the Agency conducted an investigation of these harassment claims, Complainant was provided a copy of the investigative file, and requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion to dismiss the complaint with the AJ, essentially arguing that all of Complainant's harassment claims were inextricably intertwined with his removal from Agency employment. The Agency further stated that Complainant had an opportunity to raise the affirmative defense of discrimination with the MSPB, but failed to do so. On September 28, 2013, the AJ issued an Order dismissing Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding that it represented a collateral attack on the decision of the MSPB. In support of this determination, the AJ asserted that Complainant's claims were inextricably intertwined with his termination and that he should have raised his discrimination claims in that forum. Moreover, the AJ noted that in his response to the Agency's discovery requests, Complainant admitted that he brought his EEO complaint to contest his removal from Agency employment "because he believes that 'justice was not served' through his MSPB appeal." On November 19, 2013, the Agency issued its final order adopting the AJ's dismissal of the complaint. The instant appeal followed. Complainant, on appeal, argues that "the only issues accepted and investigated in this investigation, which are the basis for the EEO complaint are the 20 allegations of hostile work environment. The discrete act of removal was dismissed early in the process and only the HWE [hostile work environment] claims were referred to an investigator and [ultimately] to the EEOC, none of which constituted matters falling with the MSPB's jurisdiction. They are clearly and totally separate from the removal action that was separately appealed to the MSPB. There was no collateral attack and by the agency's direct action taken in the formal complaint process, there was no intertwining of allegations and issues." ANALYSIS AND FINDINGS 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). An aggrieved person may initially file a mixed case complaint with an Agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an Agency shall dismiss a complaint where the Complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that the Complainant has elected the non-EEO process. Complainant filed an MSPB appeal regarding his removal from Agency employment. The record is clear that the issue of Complainant's termination from the Agency has been fully adjudicated before the MSPB. Therefore, to the extent that the Agency declined to include the termination itself in its investigation of the instant EEO complaint, it was correct to do so even though Complainant did not raise claims of discrimination before the MSPB. See Aho v. Department of Agriculture, EEOC Request No. 05860085 (May 22, 1987). However, an examination of the charges brought by the Agency in support of the termination decision, and considered by the MSPB in ruling on the propriety of the removal, reveals that these events (charge 1 - lack of candor on November 19-20, 2011; charge 2 - conduct unbecoming a federal employee on November 26, 2011) do not appear, at least explicitly, as one of the incidents referenced in Complainant's EEO complaint. Therefore, we do not find adequate support for the determination that Complainant's EEO claims are inextricably intertwined with his termination appeal. Moreover, in Equal Employment Opportunity Management Bulletin (EEO-MB) 100-1 (October 24, 2003), the Commission explained that the doctrine of "inextricably intertwined" is no longer applicable in most circumstances because the MSPB generally does not have jurisdiction over non-appealable matters, even if they are related to appealable matters. See Complainant v. Department of the Air Force, EEOC Request No. 0520140447 (January 29, 2015); Complainant v. Department of Health and Human Services, EEOC Appeal No. 0120130459 (August 28, 2014). Consequently, a complainant's harassment claim is usually properly part of an EEO complaint, even if the harassment claim encompasses incidents that are related to the complainant's ultimate removal from employment which is appealable to the MSPB. See Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968 (January 8, 2014); Jones v. U.S. Postal Service, EEOC Appeal No. 0120110192 (June 10, 2011); Hubble v. Department of the Interior, EEOC Appeal No. 0120092453 (February 18, 2011); Thomas v. Department of Veteran Affairs, EEOC Appeal No. 0120064012 (December 19, 2006). Accordingly, the Agency's final order dismissing the harassment/hostile work environment complaint in this case is REVERSED and the matter is REMANDED to the Agency for further processing as ordered below. ORDER The Agency is directed to submit a copy of this decision and the complaint file to the EEOC's San Antonio Field Office Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall process and issue a decision on the complaint 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. 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 (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 (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 January 12, 2016 __________________ 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 0120140592 5 0120140592