Lashawn C,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.

Equal Employment Opportunity Commission

Sep 10, 2020

2020002408 (E.E.O.C. Sep. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashawn C,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency. Appeal No. 2020002408 Agency No. FSIS-2019-01155 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 31, 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. BACKGROUND During the period at issue, Complainant worked as a Food Inspector, GS-1863-07 at the Agency’s facility in Greenville, South Carolina. On December 13, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to reprisal for prior protected EEO activity. In its final decision, dated December 31, 2019, the Agency determined that Complainant’s complaint was comprised of the following claims: 1. On October 7, 2019, she was issued a Notice of Termination. 2. On several dates, she was subjected to various incidents of harassment, including but not limited to, when, on September 24, 2019, she became aware that a Human Resources employee failed to file her worker’s compensation claim. 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. 2020002408 2 The Agency dismissed Complainant’s complaint on the grounds that this matter states the same claim that is pending before the Agency. The Agency found that the instant claims were accepted as an amendment to Complainant’s prior EEO complaint, Agency Case No. FSIS-2019-00989. The instant appeal followed. On appeal, Complainant asserts that the Agency’s amendment of her prior complaint, Agency Case No. FSIS-2019-00989, does not include her claim concerning her worker’s compensation claim was not filed by the Agency. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant’s complaint for stating the same claims that are already pending before the Agency. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The record reflects that the Agency accepted the claims in the instant complaint as an amendment to Complainant’s prior EEO complaint, Agency Case No. FSIS-2019-00989. The record contains a memorandum to Complainant from the Agency dated January 9, 2020 pertaining to her prior EEO complaint, Agency Case No. FSIS-2019-00989. Therein, the Agency stated that the instant complaint, Agency Case No. FSIS-2019-01155, has been dismissed and the claims have been added to the Agency Case No. FSIS-2019-00989 as an amendment. Specifically, the Agency in its January 9, 2020 memorandum listed as an amendment to Agency Case No. FSIS-2019-00989 that Complainant was issued a Notice of Termination on October 7, 2019. The Agency subsequently issued a follow up memorandum dated March 2, 2020 (while the Complainant’s instant appeal was pending before us) to expressly include another amendment from Complainant’s instant complaint to Complainant’s prior EEO complaint, Agency Case No. FSIS- 2019-00989.2 Specifically, in addition to the Notice of Termination claim previously accepted as an amendment via the Agency’s January 9, 2020 memorandum, the Agency also accepted as an amendment Complainant’s claim that on September 24, 2019, she became aware that a Human Resources employee failed to file her worker’s compensation claim. Based on the foregoing, we find that the same claims in the instant complaint are currently pending before the Agency as part of Complainant’s prior EEO complaint, Agency Case No. FSIS-2019-00989. Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint. 2 We note that footnote 2 of Agency’s March 2, 2020 memorandum pertaining to Agency Case No. FSIS-2019-00989 stated that that “Complainant [No.] [FSIS]-2019-00800 has been dismissed and all claims have been added to the instant complaint.” We find that reference to Agency Case No. FSIS-2019-00800 was an inadvertent error; since, the record reflects that the amended claims set forth in Agency’s March 2, 2020 memorandum are from Agency Case No. FSIS-2019-01155. 2020002408 3 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. 2020002408 4 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 10, 2020 Date