U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roscoe P.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Land Management), Agency. Appeal No. 0120152937 Agency No. BLM150037 DECISION On August 24, 2015, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 14, 2015, final decision (FAD) 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 Agency's FAD is VACATED in part and REMANDED for further processing. ISSUE PRESENTED Whether the Agency correctly issued a FAD with appeal rights only to the Merit Systems Protection Board (MSPB) finding no discrimination without informing Complainant of his right to request an EEOC hearing or an immediate FAD on the non-mixed allegations in his complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Law Enforcement Ranger at the El Centro Field Office in El Centro, California. On December 15, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male/sex stereotyping), disability (post-traumatic stress disorder), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On or around July 8, 2013, S1, his first level supervisor, discouraged him from detailing to the California Desert District as a District Chief Law Enforcement Ranger; 2. On or around November 7, 2013 S2 issued a memorandum suspending Complainant's law enforcement authority; 3. In January 2014, S1 denied Complainant administratively uncontrolled overtime; 4. On or around July 2, 2014, S3 issued Complainant a notice of proposed removal; and 5. Effective September 22, 2014, Complainant was removed from his position as a Senior Law Enforcement Ranger. At the conclusion of the investigation into the allegations, the Agency provided Complainant with a copy of the report of investigation (ROI) and notification that a FAD would be issued with notice of his right to appeal to the Merit Systems Protection Board (MSPB) because the complaint was a mixed case complaint. See Agency's May 29, 2015 Letter Regarding ROI. The FAD concluded that Complainant did not prove that the Agency subjected him to the alleged discrimination, and contained only appeal rights to the MSPB. Complainant appealed to the MSPB, and the MSPB upheld the Agency's removal action. MSPB No. SF-0752-15-0751-I-1 (Jan. 6, 2017). Complainant also appealed allegations (1) - (4) to the Commission, which is the subject of the present appeal. CONTENTIONS ON APPEAL Complainant contends that the Agency did not fully investigate his gender discrimination claims even though he specified to the investigator that he was harassed following an incident with a transgender individual due to a perception that he was anti-LGBT.2 The Agency contends that the appeal should be dismissed for lack of jurisdiction because the complaint is a mixed case complaint over which the MSPB has jurisdiction. ANALYSIS AND FINDINGS "A mixed case complaint is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, genetic information, or reprisal related to or stemming from an action that may be appealed to the MSPB. The complaint may contain only a claim of employment discrimination or it may contain additional non-discrimination claims that the MSPB has jurisdiction to address." 29 C.F.R. § 1614.302(a)(1). A review of the FAD indicates that the Agency only gave Complainant appeal rights to the MSPB on all five (5) of his allegations. However, only the removal allegation, allegation (5), constituted a mixed case allegation that should have been processed in accordance with mixed case complaint procedures. We find that Complainant's allegation regarding the Agency's proposal to remove was properly merged with the actual removal given that they are based on the same set of facts. Complainant v. Dep't of Health and Human Services, EEOC Appeal No. 0120130459 (Aug. 28, 2014) ("a proposed removal merges into a decision to remove"). Therefore, we find that allegations (4) and (5) were mixed case claims for which Complainant was not entitled to further EEOC processing. 29 C.F.R. § 1614.302(d)(ii)(2). The remainder of Complainant's other allegations, i.e., allegations (1) - (3), do not involve mixed case issues and therefore do not comprise a mixed case complaint. For non-mixed complaints, "the agency shall provide the complainant with a copy of the investigative file, and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision..." 29 C.F.R. §1614.108(f). The Agency did not notify Complainant of his right to request a hearing or an immediate FAD with regard to allegations (1) - (3). Therefore, with regard to allegations (1) - (3), we will vacate the FAD and remand these matters to the Agency in accordance with our Order below. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's FAD, as it relates to allegations (1)-(3) is VACATED. This portion of the complaint is REMANDED for further processing consistent with this decision and the Order below.3 ORDER Within 30 calendar days of its receipt of this decision, the Agency shall notify Complainant of his right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision on his discrimination claims, i.e., allegations (1) - (3), pursuant to 29 C.F.R. § 1614.110. A copy of the notification shall be provided to the Compliance Officer listed below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 11-09-2017 __________________ 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 The Commission makes no determination on the propriety of the Agency to not investigate this allegation. Complainant was provided an opportunity to review and correct the claims that were accepted for investigation, but he did not appear to do so. 3 The Commission makes no finding regarding claims (4) and (5) because they are not properly before us on appeal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2015-2937 2 0120152937