0120121106
05-01-2012
Alina Korsunska, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Alina Korsunska,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120121106
Agency No. HS-CIS-01541-2011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 2, 2011, dismissing 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.
BACKGROUND
On August 21, 2011, Complainant, a former employee with the Agency's US CIS California Service Center filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected activity when:
she discovered an email on July 8, 2011, which had originally been received on May 27, 2011, that notified her that she was not selected for a position to which she applied at Social Security Administration (SSA) which led her to believe that USCIS California Service Center breached a settlement agreement that she entered into with the Agency on June 9, 2010, specifying how references into her previous employment would be delivered to potential employers.1
At the end of a statement provided in the formal complaint, Complainant stated that she lost an employment opportunity in October 2009, "because [the] Agency fabricated reason for my termination and after that, I was long time unemployed because [the] Agency violated the terms of the settlement agreement."
On December 2, 2011, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107 (a)(1) for failure to state a claim. The Agency characterized Complainant's claim as an allegation that unlawful retaliation led to the Agency's failure to provide her with an appropriate reference led to her non selection for a position with SSA. The Agency noted that Complainant stated to the EEO Counselor that she was informed by the SSA that no one was hired for the position under the announcement at issue. Accordingly, the Agency concluded that in view of the fact that the position was not filled, the alleged actions of the Agency did not subject Complainant to any harm as alleged.
ANALYSIS AND FINDINGS
The Commission determines that the Agency improperly analyzed the instant matter in terms of whether it stated a claim, and by dismissing it pursuant to 29 C.F.R. � 1614.107(a)(1). A fair reading of the formal complaint and pre-complaint documents reflects that Complainant alleged breach of a June 9, 2010 settlement agreement, and the Agency should have therefore processed this matter as a breach claim pursuant to the procedures detailed in 29 � 1614.504(a), instead of dismissing it on the procedural grounds cited above. Moreover, the Commission cannot presently address the issue of the breach claim, as we cannot ascertain sufficient information in the record for such a determination.
Accordingly, the Agency final decision dismissing the formal complaint is REVERSED. The matter, identified as breach claim, is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
Pursuant to the procedures detailed in 29 C.F.R. � 1614.504(a), the Agency shall investigate Complainant's breach claim regarding a June 9, 2010 settlement agreement, to determine whether it has complied with this settlement agreement. Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall issue a determination regarding whether or not it has complied with the settlement agreement with appeals rights to this Commission.
A copy of the Agency's determination must be sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
May 1, 2012
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Alina Korsunska
1120 N Fuller Ave #209
W Hollywood, CA 90046
U.S. Department of Homeland Security
Office for Civil Rights and Civil Liberties
245 Murray Ln., SW Bldg. 410
Mail Stop 0191
Washington, DC 20528
EEO Complaints Resolution Division
Office of Equal Opportunity and Inclusion
U.S. Citizenship and Immigration Services
3050 Metro Drive, Suite 101
Bloomington, MN 55425
__________________
Date
______________________________
Equal Opportunity Assistant
1 We note that in her formal complaint, Complainant inadvertently identified the date of the settlement agreement as June 9, 2009, instead of June 9, 2010.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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