0120120610
03-16-2012
Kimberly A. Moreland, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Kimberly A. Moreland,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120120610
Agency No. HS-11-FEMA-00069
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated July 14, 2011, 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
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 worked
as a Voluntary Agency Liaison. The record indicated that Complainant
filed a prior EEO complaint which was pending a hearing before an EEOC
Administrative Judge (AJ). Complainant was required to attend the hearing
which was held in Milwaukee, Wisconsin. Complainant requested that the
Agency pay for her travel expenses for the hearing. The Agency denied
Complainant’s request. She subsequently learned that the Agency paid
for two employees’ travel expenses to attend the hearing.
Believing she was subjected to discrimination, Complainant contacted
the EEO Counselor. When the matter could not be resolved informally,
Complainant was issued a Notice of Right to File a Formal Complaint.
On April 1, 2011, Complainant filed a formal complaint alleging
that the Agency subjected her to discrimination on the bases of race
(African-American), sex (female), age (47), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act of 1967 when: on March 15,
2011, you learned that the Agency deployed and paid travel expenses for
two witnesses to participate in her hearing before the AJ, but would
not pay Complainant’s travel expenses.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(8)
for alleging dissatisfaction with the processing of a previously filed
complaint. The Agency found that the complaint stemmed from allegedly
improper conduct by the Agency with respect to a hearing held on her
prior EEO complaint.
This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(8) provides,
in relevant part, that an agency shall dismiss claims alleging
dissatisfaction with the processing of a prior complaint. Dissatisfaction
with the EEO process must be raised within the underlying complaint,
not a new complaint. A complainant must raise any dissatisfaction with
the processing of her complaint within the processing of that complaint.1
See EEOC - Management Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25
to 5-26. Here, Complainant contends that she was discriminated against
when management denied her request for the travel costs associated with
attending an EEO hearing. The Commission finds that the complaint is an
improper “spin-off” of Complainant's prior complaints and that it
was properly dismissed by the Agency. See McNeal v. Dep’t of Homeland
Sec., EEOC Appeal No. 01A40521 (Feb. 10, 2004).
CONCLUSION
Accordingly, the Agency's decision is hereby AFFIRMED.
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 (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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 16, 2012
__________________
Date
1 We note that the AJ issued a decision on Complainant’s previous
complaint. Both the Agency and Complainant have filed appeals on the
matter with the Commission. The prior complaint has been docketed as
EEOC Appeal No. 0720120006. We note that Complainant should raise her
claim regarding the denial of travel costs within the appeal.
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0120120610
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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