EEOC Appeal 2020000414

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Venetta S.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020000414
Agency No. ARRUCKER19JUN02066
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 1, 2019, dismissing her 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
At the time of events giving rise to this complaint, Complainant worked as an Instructional
Systems Specialist, GS-12, at the Agency’s Training and Education Division facility in Fort
Rucker, Alabama.
On July 18, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to
discrimination on the bases of disability and reprisal when:
1. 	On 	September 	11, 	2018, 	the 	Training 	Development 	Chief 	(“S1”) 	issued
Complainant a counseling statement for unprofessional behavior and going outside
the chain of command;
2. 	On February 27, 2019, S1 issued a Notice of Pending Termination;
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.

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3. 	On April 8, 2019, S1 responded to her request for the Reasonable Accommodation
of telework;
4. 	On April 17, 2019 and April 19, 2019, S1 issued a Proposal for Removal;
5. 	On May 17, 2019, the Director of Training (“the Director”) issued a Decision for
Removal; and
6. 	On May 20, 2019, the Director issued a second Decision for Removal.
The Agency dismissed claims 2, 4, 5 and 6 for filing an appeal with the Merit Systems Protection
Board (MSPB); and claims 1 and 3 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO
Counselor contact.
The instant appeal followed. In her appeal, Complainant states she originally contacted the EEO
counselor in September 2018, and provides emails relating to her contacts.
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, or genetic information related to
or stemming from an action that can be appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). A
complainant may pursue a mixed case complaint with the Agency under to EEO complaint process
or an appeal on the same matter with the MSPB, but not both. 	29 C.F.R. § 1614.302(b).
Additionally, 29 C.F.R. § 1614.107(a)(4) allows for the dismissal of complaints where a
Complainant has raised the same matter in an appeal to the MSPB and has indicated that she has
elected to pursue the non-EEO process.
In the instant case, it is clear that Complainant pursued the MSPB process with respect to her
termination. The record contains a copy of her appeal to the MSPB, and we note that a petition for
review of the MSPB’s decision is currently pending with this Commission. See EEOC Petition
No. 2020003135.
We take administrative notice that the records in Petition No. 2020003135 contain a copy of the
MSPB Initial Decision (MSPB No. AT-0752-19-0573-I-1), which was issued on February 10,
2020. Therein, the MSPB Administrative Judge addressed Complainant’s termination (claims 2,
4, 5 and 6 of his subsequent EEO complaint), as well as issues inextricably intertwined with the
termination – the reasonable accommodation issue (claim 3) and the letter of counseling (claim 1).
As such, we find that the entire complaint must be dismissed as having been pursued before the
MSPB.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

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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
September 9, 2020
Date