Kimberly A. Moreland, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity CommissionMar 16, 2012
0120120610 (E.E.O.C. Mar. 16, 2012)

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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0120120610