U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gregory F.,1 Complainant, v. Anthony Foxx, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120160909 Agency No. 2015-26494-FAA-05 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 20, 2015, dismissing a formal complaint of unlawful 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. BACKGROUND During the period at issue, Complainant worked as an Airway Transportation System Specialist at the Love Field Airport in Dallas, Texas. On November 5, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race, color, disability, and in reprisal for prior EEO activity when: 1. from July 2014 to July 2015, he was subjected to harassment; and 2. on July 22, 2015, he was discharged from his position of Airway Transportation System Specialist. In its November 20, 2015 final decision, the Agency dismissed claims 1 and 2 for stating the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that the instant formal complaint raises the same matter in Agency Case No. 2014-25854-FAA-05. The Agency also dismissed claim 2 pursuant to 29 C.F.R. § 1614.302(b), which provides that an aggrieved may file a mixed case complaint with an agency or an appeal on the same matter with the Merit Systems Protection Board (MSPB) pursuant to 5 C.F.R. § 1201.151, but not both.2 The Agency noted that Complainant filed an appeal with the MSPB concerning his removal prior to filing the instant formal complaint on November 5, 2015. The instant appeal followed. ANALYSIS AND FINDINGS Same claims (claims 1 and 2) EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. The Commission has consistently held that in order form a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incidents, and parties. See Jackson v. USPS, EEOC Appeal No. 01955890 (April 5, 1996). The Agency dismissed claims 1 and 2 on the grounds that Complainant raised the same matter in a previously filed EEO complaint (Agency Case No. 2014-25854-FAA-05). However, the record does not contain a copy of Agency Case No. 2014-25854-FAA-05. Clearly, it is the burden of the Agency to have proof in support of its decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Therefore, the Agency improperly dismissed claims 1 and 2 on the grounds that it states the same claim that was raised in a previously filed EEO complaint. Raised the matter in an appeal to the MSPB (claim 2) 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. Here, the Agency indicated in its final decision that Complainant filed an MSPB appeal regarding his discharge. However, the record in this case contains no copy of the MSPB appeal, or of any MSPB decision accepting jurisdiction of an MSPB. We are unable to affirm the Agency's dismissal of claim 2 on the grounds that it addresses the same matter raised in a previously filed MSPB appeal. We REVERSE the Agency's final decision dismissing claims 1 and 2, and we REMAND these claims to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must 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 (M0610) 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 9-18 (November 9, 1999). 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 April 14, 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 The record does not contain a copy of Complainant's appeal to the MSPB. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120160909 2 0120160909 6 0120160909