0120132506
07-28-2015
Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0120132506
Agency Nos. BOP-2012-0388 & DJ 187-3-3381
DECISION
On June 19, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 16, 2013, finding no discrimination on some issues and dismissing others regarding 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
At the time of events giving rise to this complaint, Complainant worked as a Unit Secretary, GS-6 at the Agency's Federal Bureau of Prisons, Federal Corrections Institution Williamsburg in Salters, South Carolina.
On March 5, 2013, Complainant filed a formal complaint, as amended, alleging that the Agency subjected her to discrimination under the theories of harassment and disparate treatment, as applicable, based on her sex, national origin/race (African-American/Black) and reprisal for prior protected EEO activity when:
1. In 2008, she was ordered not to pay an employee when he was out of work due to an illness;
2. She was placed on a Performance Improvement Plan (PIP) in February 2011;
3. She received negative log entries in February and May 2011;
4. She was given unsolicited literature for women with low self-esteem in April 2011;
5. She was accused of immature behavior in or after April 2011;
6. In May 2011, her request to transfer from a secretarial position to a custody position was denied;
7. On June 29, 2011, she was informed in writing that her performance was at the unacceptable level and placed on a second performance opportunity period.
8. She was accused of not performing her duties during a time period when she was on leave (from around June 30, 2011 to July 13, 2011), and given a negative log entry therefore in August 2011;
9. She was denied the right to work compensatory time in August 2011;
10. In December 2011, she learned she was denied awards;
11. On January 18, 2012, management wrote false, derogatory, and demeaning statements about her work performance and employment status on her workers' compensation forms;
12. On February 2, 2012, she was wrongly terminated from employment;
13. Several employees have been allowed to transfer from their positions with performance concerns;
14. Management violated local and federal laws, standards of employee conduct were violated, there were personnel practices placed under investigation which resulted in no disciplinary sanctions by the Warden;
15. The EEO counselor failed to gather pertinent information, conduct a thorough inquiry, and interview pertinent witnesses, and submitted a biased counselor's report;
16. She did not receive documentation informing her of the EEO investigative agency assigned to her case; and
17. The EEO investigator mishandled her case.
The Agency accepted some issues for investigation, including the removal, and dismissed some others, most explicitly and some by omission. Following an investigation of the accepted claims, the Agency provided Complainant with a Report of Investigation (ROI). In its ROI transmittal letter to Complainant, the Agency reiterated to her that her case was mixed, meaning it regarded a complaint of employment discrimination stemming from an action (removal) that can be appealed to the Merit Systems Protection Board (MSPB). The Agency advised it would issue a FAD with appeal rights to the MSPB, which it later did. The Agency found no discrimination.
With the FAD, the Agency provided Complainant the right to file an appeal to the MSPB or a civil action complaint with a United States District Court. It did not provide any other appeal rights. Nevertheless, Complainant filed her appeal with the EEOC.1
ANALYSIS AND FINDINGS
Complainant did not have the right to appeal her mixed case claim of removal to the EEOC. 29 C.F.R. � 1614.302(d)(3). Accordingly, this claim is dismissed.2 Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120131462 (Feb. 20, 2015).
The MSPB does not have jurisdiction over the remainder of the complaint. Equal Employment Opportunity Commission Management Bulletin, 100-1 (Oct. 24, 2013) (deleting applicable consolidation language from the Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999)). Accordingly, the Agency should have processed the remainder of the complaint under non-mixed case procedures and issued Complainant the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge after it completed its investigation on the non-mixed claims. 29 C.F.R. � 1614.108(f).
Accordingly, on remand, the Agency shall provide Complainant with the right to request a hearing before an EEOC AJ on her complaint, as amended, or to request an immediate FAD thereon, except issue 12.
The FAD is VACATED.
ORDER
Within 15 calendar days after this decision becomes final, the Agency shall provide Complainant in writing with the right to request a hearing on complaint, as amended, or to request an immediate FAD thereon, except issue 12. 29 C.F.R. � 1614.108(f).
A copy of the Agency's letter providing the above rights to Complainant 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 (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 (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
July 28, 2015
__________________
Date
1 The EEOC contacted the MSPB in June 2015. The MSPB advised it did not have any record of appeal by Complainant.
2 If Complainant appeals her removal to the MSPB, it will decide whether to accept the appeal.
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0120132506
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132506