EEOC Appeal 2020000491

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adan N., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020000491
Agency No. 200I-0005-2019104328
DECISION
On October 21, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final Agency decision (FAD) dated September 20,
2019, dismissing his 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 the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
an Information Technology (IT) Project Manager, GS-2210-13, at the Office of Information
Technology, Enterprise Portfolio Management Division in Birmingham, Alabama.
On August 2, 2019, Complainant filed an equal employment opportunity complaint (EEO)
complaint alleging that the Agency subjected him to discrimination:
1. 	and harassment based on his race/sex (African-American male), and age (over 40) when
from January 10, 2018 to June 14, 2019, he was denied training opportunities, work
equipment, travel, telework, and subjected to negative communication;
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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2. 	based on reprisal for a “previous EEO Complaint of whistle blowing” 2 when on or about
August 10, 2018 [and perhaps onward], he received unfair performance evaluation(s);
3. 	based on reprisal for notifying Agency leadership of whistleblower violations and his
previous whistleblowing EEO complaint when he was terminated effective June 14, 2019,
for failing to meet his performance standards.
In its decision to remove Complainant, the Agency notified him that he had a right to file an appeal
with the MSPB or file an EEO complaint, that whichever he filed first would constitute an election
to proceed in that forum, and he may raise discrimination in either process. On June 27, 2019,
Complainant appealed his removal to the MSPB. 3
The Agency dismissed issue 3 because Complainant elected to appeal his removal to the MSPB.
It dismissed Complainant’s claim of reprisal discrimination to the extent it was for whistleblowing
for failure to state a claim. The Agency referred issue 1, which it characterized as a “timely raised
harassment claim” that included the unfair performance evaluation to an EEO counselor because
Complainant did not raise these matters with the EEO counselor. The instant appeal followed.
On appeal, Complainant makes no comment.
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
in engaging in protected EEO activity that can be appealed to the MSPB. 29 C.F.R. 	§
1614.302(a)(1).
An Agency shall dismiss a complaint where the complainant has filed an appeal to the MSPB and
§ 1614.302 indicates that the complainant has elected to pursue the non-EEO process. 29 C.F.R. §
2 We take administrative notice that in December 2013, Complainant filed an appeal with the Merit
Systems Protection Board (MSPB) on an unrelated matter, and raised the affirmative defense of
race discrimination. See the initial decision in MSPB No. AT-0752-14-0278-I-1, at footnote 2
(Feb. 24, 2016). This is protected EEO activity.
3 We take administrative notice that on November 19, 2019, the MSPB issued an initial decision
(MSPB No. AT-0714-19-0581-I-1) affirming the Agency’s removal action. In so doing, it found
that Complainant failed to prove his affirmative defenses of retaliation for filing a prior appeal
with the MSPB in December 2013, and whistleblowing. The MSPB found that while Complainant
raised the affirmative defense of retaliation for prior EEO activity in 2013, he did not raise it in his
prehearing submissions, it was not contained in the MSPB Judge’s prehearing conference
summary, and it was untimely raised. Thereafter, on December 24, 2019, Complainant filed a
petition to review the initial decision with the Board. As of April 13, 2020, the petition is still
pending.

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1614.107(a)(1). Regarding issue 3, such is the case here. 29 C.F.R. § 1614.302(b). While it is true
that 29 C.F.R. §1614.302(c)(2)(i) states that a “dismissal of a mixed case complaint is not
appealable to the Commission except where it is alleged that § 1614.107(a)(4) has been applied to
a non-mixed case matter,” all dismissals under 29 C.F.R. § 1614.107 are appealable to the
Commission. 29 C.F.R. § 1614.110(b). The Agency’s dismissal of issue 3 is affirmed.
EEOC regulation 29 C.F.R. § 1614.107(a)(1) states that an agency shall dismiss a complaint that
fails to state a claim. The Commission does not have jurisdiction over reprisal for whistleblowing.
29 C.F.R. §§ 1614.103, .106(a). We agree with the Agency’s dismissal of Complainant’s reprisal
claim to the extent it regarded whistleblowing.
The Agency referred Issue 1, which it characterized as a “timely raised harassment claim” that
included the unfair performance evaluation to an EEO counselor. Since Complainant did not raise
these matters in EEO counseling, this referral does not violate 29 C.F.R. Part 1614. While the
Agency did not address issue 2 as an independent claim, its construing issue 1 to include
Complainant receiving an unfair performance evaluation shows the referral to EEO counseling
included this.
The FAD is AFFIRMED.
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

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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.
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
August 31, 2020
Date