U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Faustino M,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120151165 Agency No. 2001-0544-2014100817 DECISION On February 2, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's January 8, 2015 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Housekeeping Aide, WG-3566-2 Step 3, in the Environmental Management Services in Columbia, South Carolina. On December 4, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On January 10, 2014, Complainant filed a formal complaint. Complainant claimed that the Agency discriminated against him on the basis of disability (physical, limited knee and ankle mobility) when: 1. from January 2012, and as recently as February 17, 2014, Complainant was forced to use accumulated leave and/or was placed on leave without pay, instead of being reassigned to a permanent sedentary position as a reasonable accommodation; 2. in January 2013, Complainant was temporarily assigned a sedentary position for two months; and, 3. on December 30, 2013, Complainant was issued a "return to duty" notice that instructed him to report for duty on December 30, 2012, and advised him that failure to comply with the notice may result in disciplinary action (written counseling). On February 18, 2014, Complainant requested that the following allegation be added to his complaint: on January 27, 2014, Complainant was issued a Notice of Proposed Separation. On March 12, 2014, the Agency sent Complainant a Notice of Partial Acceptance. The Agency accepted claims 1 and 3 for investigation. The Agency dismissed claim 2 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Regarding the proposed termination letter of January 27, 2014, the Agency found that pursuant to 29 C.F.R. § 1614.107(a)(5), which provided for dismissal of complaints which allege a proposal to take a personnel action or other preliminary steps to taking a proposed personnel action, the amended claim request would be rejected for this matter. Following the investigation of claims 1 and 3, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). On January 8, 2015, the Agency issued a final decision regarding claims 1 and 3. The Agency also reiterated that claim 2 had properly been dismissed in March 2014. Regarding Complainant's January 27, 2014 proposed termination, the Agency determined that the matter had appropriately rejected the amendment request as it was merely a proposed, and not a completed, termination. However, the Agency did note that, In the event that the agency ultimately issued Complainant a notice of termination, we note that the proposed termination will 'merge' with the actual termination. However, the record before us includes no information regarding a removal action, if any occurred, and this matter is not before us for adjudication. The instant appeal followed. Regarding the separation issue, Complainant also provided a copy of the Agency's June 3, 2014 Decision to Separate. The letter informed Complainant that the separation would be effective June 28, 2014. Specifically, it stated that, In connection with the letter of January 27, 2014 in which you were given advance notice of our proposed separation, a decision has been made to separate you from employment effective June 28, 2014, based on the following reason(s): Charge 1: Excessive Absence. .... ANALYSIS AND FINDINGS Decision to Separate As discussed above, in its final decision, the Agency noted that while the Agency properly denied Complainant's amendment request to add the Notice of Proposed Separation, the Agency would consider any future actual Notice of Separation as having "merge[d]" with the Notice of Proposed Separation. The Commission has determined that a proposed separation and the subsequent final decision to separate are inextricably intertwined. However, in those instances, individuals first received EEO counseling on the proposed action and therefore, when the agency ultimately carried out the action, the otherwise premature claim merged with the effectuated action. Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568 (Oct. 9, 1997). Here, Complainant's request to amend the formal complaint was denied by the Agency because it determined that the separation notice was merely a proposal. This proposal, however, has indeed merged with the effectuated action (separation), and merits further review by the Agency in accordance with our remand order below. We find, moreover, that the issue of Complainant's separation from Agency employment is clearly intertwined with the matters identified in claims 1 - 3, and should not be fragmented. Based on such circumstances, we will not address claims 1 - 3 further herein and we remand claims 1 - 3 to the Agency for further processing below, in conjunction with the separation claim. In sum, the Agency's final decision of January 8, 2015 is VACATED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER Within ninety (90) days from the date that this decision is issued, the Agency shall: 1. Conduct a supplemental investigation on the issue of Complainant's separation from Agency employment, as well as on the related claims (claims 1 & 3). 2. After conducting the supplemental investigation, the Agency shall provide Complainant was a copy of the supplemental investigation file and shall notify Complainant of the right to request a hearing before an EEOC Administrative Judge, or an Agency final decision. A copy of the notice to Complainant transmitting the supplemental investigation and advising Complainant of the right to request a hearing or a final decision shall 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 (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, Director Office of Federal Operations March 28, 2017 __________________ 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 0120151165