[Redacted], Herb E, 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

May 10, 2022

Appeal No. 2021004158 (E.E.O.C. May. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb E,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021004158 Hearing No. 520-2021-00114X Agency No. HS-FEMA-00499-2020 DISMISSAL OF APPEAL Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 13, 2021, finding no discrimination with regard to a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. During the period at issue, Complainant worked as a Program Analyst, GS-0343-11 at the Agency’s Cadre of On-Call Response/Recovery Employee, FEMA Region II, Mission Support Division in New York, New York. On January 21, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her to a hostile work environment based on race (Black), national origin (Belizean American), sex (female), disability (physical), age (YOB: 1958), and in reprisal for prior protected EEO activity (instant complaint) from April 2018 to December 18, 2019, when: 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. 2021004158 2 1. on or about April 4, 2018, the Mission Support Division Director (MSD) refused to review Complainant’s work product and provide feedback; 2. in and around April 2018, management denied Complainant the opportunity to work in Puerto Rico; 3. on or about January 15, 2019, the MSD stated, “I don’t understand why you are here, every time I turn around, I see you;” 4. on or about February 15, 2019, the MSD exposed information from Complainant’s training application package to another employee without the need to know, violating Complainant’s privacy; 5. on or about March 20, 2019, the MSD sarcastically commented to Complainant, “Thank you for saving me,” after Complainant completed an assignment; 6. on or about March 20, 2019, the MSD asked Complainant, “What type of degree did you say you have?” and when Complainant responded Doctorate of Business Administration, the MSD responded sarcastically, “Good, I’ll make sure you get what you deserve;” 7. on or about June 24, 2019, the MSD discontinued Complainant’s assignment to build the Business Management Branch and did not provide a replacement assignment; 8. on two consecutive meeting agendas, the MSD misspelled Complainant’s name; 9. on or about August 22, 2019, the MSD condescendingly requested Complainant to provide her daily tasks by the end of the day; 10. on or about September 6, 2019, the MSD discussed “right-sizing” the division in a joking manner and responded to Complainant’s questions in a retaliatory manner; 11. on or about September 17, 2019, the MSD commented how she was ready for Complainant this time, and informed Complainant her “Not to Exceed” date would not be extended; 12. on or about September 17, 2019, the MSD did not have assignments for Complainant and excluded her from meetings; 13. in and around September 2019, the MSD directed all Mission Support employees to relocate to another area, except Complainant; 2021004158 3 14. on or about October 28, 2019, the MSD directed Complainant’s supervisor to move close to an employee that was a close ally to the MSD; 15. on or about November 4, 2019, the MSD did not give Complainant an interview for a permanent Program Services Manager position, GS-0301-14, advertised under Vacancy Announcement No. FEMA-20-KN-325734-MP; 16. on or about December 4, 2019, the MSD excluded Complainant from one-on-one meetings for the Business Excellence Project on the Mission Support Division; and 17. on or about December 18, 2019, the MSD instructed Complainant’s supervisor to assign Complainant’s work to another employee. After an investigation into the accepted claims, Complainant requested a hearing before an EEOC Administrative Judge (“AJ”), but subsequently withdrew her request. In its July 13, 2021 decision, the Agency found no evidence of discrimination, retaliation, or harassment. The instant appeal followed. On appeal, Complainant submitted a letter to the Commission, dated February 26, 2022, notifying the Commission of her intent to file a civil complaint, regarding the instant matter, with the U.S. District Court. Our review of the record supports that on March 1, 2022, Complainant filed a civil action, docketed as 1:22-CV-01109-NLH-SAK, in the United States District Court of New Jersey. Consistent with Complainant’s statements on appeal, a copy of Complainant’s civil complaint reveals that it encompasses the same matters in the instant complaint. The regulation found at 29 C.F.R. § 1614.409 provides that the filing of a civil action “shall terminate Commission processing of the appeal.” Commission regulations mandate dismissal of the EEO complaint under these circumstances so as to prevent a Complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, and creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. See Stromgren v. Department of Veterans Affairs, EEOC Request No. 05891079 (May 7, 1990); Sandy v. Department of Justice, EEOC Appeal No. 01893513 (Oct. 19, 1989); Kotwitz v. U.S. Postal Service, EEOC Request No. 05880114 (Oct. 25, 1988). Therefore, Complainant’s appeal in this matter is DISMISSED. 2021004158 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021004158 5 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 May 10, 2022 Date