Cecille W.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 20, 2016

0520160167 (E.E.O.C. May. 20, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cecille W.,1
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Request No. 0520160167

Appeal No. 0120152698

Agency No. 156053001415

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested reconsideration of the decision in EEOC Appeal No. 0120152698
(December 16, 2015). EEOC Regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

The record indicates that on March 12, 2015, Complainant contacted an EEO Counselor
concerning the complaint. Unable to resolve the matter informally, Complainant filed the
instant complaint alleging discrimination in reprisal for prior EEO activity when she was
subjected to harassment in that: her supervisor failed to take action regarding the hostile work
environment created by her coworkers on numerous occasions from 2011 to October 2014; and
she felt that she was forced to retire (constructive discharge) effective April 30, 2015. On July
10, 2015, the Agency issued its final decision dismissing the complaint due to untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant appealed from this
decision. On August 31, 2015, the Agency vacated the July 10, 2015 final decision and
reissued the decision dismissing the complaint on the same grounds, i.e., due to untimely EEO
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.

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Counselor contact, described above, and provided therein her appeal rights to the Merit
Systems Protection Board (MSPB). The MSPB dismissed the matter on November 2, 2015.

On appeal, the Commission found that the Commission has jurisdiction over the Agency’s July
10, 2015 final decision and that the Agency improperly vacated that decision and provided
Complainant with appeal rights to the MSPB. Furthermore, the Commission found that the
Agency improperly dismissed the complaint due to untimely EEO Counselor contact since
Complainant alleged a claim of ongoing retaliatory harassment which started in 2012 and
culminated in her retirement effective April 30, 2015, and her March 12, 2015 EEO Counselor
was timely. In the request, the Agency argues that the Commission improperly reversed its
decision because of untimely EEO Counselor contact.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. Furthermore, we note that some of the Agency’s arguments
in their request improperly address the merits of the complaint. The decision in EEOC Appeal
No. 0120152698 remains the Commission's decision. There is no further right of
administrative appeal on the decision of the Commission on this request. The Agency shall
comply with the Order as set forth herein.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R.
§1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights 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

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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.

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 (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

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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 20, 2016
Date