Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.

Equal Employment Opportunity CommissionApr 3, 2014
0520140051 (E.E.O.C. Apr. 3, 2014)

0520140051

04-03-2014

Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.


Complainant,

v.

Jeh Johnson,

Secretary,

Department of Homeland Security

(Citizenship and Immigration Services),

Agency.

Request No. 0520140051

Appeal No. 0120132158

Agency No. HS-CIS-00059-2013

DENIAL

The agency timely requested reconsideration of the decision in EEOC Appeal No. 0120132158 (September 5, 2013). 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).

Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race, color, and age. The Agency framed the claims as follows:

1. Beginning 2008, Complainant was bypassed in e-mails from management to her staff; most recently this occurred on September 11, 2012.

2. From December 2008 through October 2011, the Chief of Staff spoke for Complainant in weekly staff meetings. Complainant stated that the Chief of Staff would not let her answer any questions or say anything.

3. On June 23, 2011, Complainant received a negative 360-performance review.

4. On July 18, 2011, Complainant was blamed for a staff member's departure and informed that she needed to improve her communication skills.

5. Beginning 2010, and most recently in 2011, Complainant was questioned about her retirement date.

6. In June 2012, Complainant was given her 25-year service pin two months earlier.

The Agency dismissed Complainant's complaint on the grounds that claim (1) failed to state a claim and that Complainant did not bring claims (2) - (6) to the attention of an EEO Counselor in a timely manner.

Our previous decision reversed the Agency's dismissal and remanded the complaint for further processing. We found that the Agency improperly fragmented Complainant's hostile-work-environment claim when it dismissed claim (1). Noting that Complainant asserted that she had "been continuously treated in a manner designed to degrade, intimidate, and limit [her] ability to be successful" and that she had been subjected to a "hostile work environment," we concluded that Complainant alleged that the Agency subjected her to a series of related harassing incidents. We noted, for example, that Complainant alleged that Agency management did not include her on e-mails to her subordinates, assigned work to her staff without her knowledge, and questioned her about her retirement plans. We concluded that, viewed collectively, the alleged incidents were sufficiently severe or pervasive to set forth an actionable claim of harassment.

We further concluded that the Agency improperly dismissed claims (2) - (6). In that regard, we noted that a hostile-environment claim is actionable as long as one of the incidents in the claim occurred within the filing period. See EEOC Compliance Manual EOC Compliance Manual Section 2: Threshold Issues, No. 915.003, at � 2-IV.C.1.b. (rev. Aug. 9, 2009) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 10, 117 (2002)). Noting that the September 11, 2012, incident occurred within 45 days of Complainant's October 5, 2012, EEO Counselor contact, we found that Complainant's hostile-environment claim was timely.

In its request for reconsideration, the Agency argues that the previous decision involved a clearly erroneous interpretation of law. The Agency asserts that Complainant's claims involve isolated incidents and that the previous decision erroneously failed to determine whether the incidents were sufficiently related to constitute a continuing violation. The Agency also asserts that the alleged conduct was not sufficiently severe to constitute harassment.

We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.

As the previous decision correctly found, Complainant alleged an actionable hostile-environment claim. In her complaint, Complainant expressly alleged that the Agency subjected her to a "hostile work environment." She asserted that Agency management subjected her to harassment by, among other things, not including her on e-mails to her subordinates, assigning work to her staff, and inquiring about her plans to retire. Although the Agency asserts that the incidents were isolated, the previous decision correctly concluded that Complainant alleged that the Agency subjected her to a series of related harassing incidents. Further, because the September 11, 2012, incident occurred within the applicable 45-day time frame, Complainant's harassment claim was timely. When considered together and assumed to be true, the incidents were sufficiently severe or pervasive to state an actionable claim of hostile work environment.

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. The decision in EEOC Appeal No. 0120132158 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 below.

ORDER (E0610)

The Agency is ordered to process the remanded claim (harassment/hostile work environment) 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 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 (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

April 3, 2014

Date

2

0520140051

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0520140051