0320120022
08-24-2012
Deborah K. Lewis, Petitioner, v. Janet Napolitano, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Deborah K. Lewis,
Petitioner,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Petition No. 0320120022
MSPB No. DC-0752-11-0774-I-1
DECISION
On December 15, 2011, Petitioner filed a timely petition with the Equal Employment Opportunity Commission asking for review of a Final Order issued by the Merit Systems Protection Board (MSPB) concerning her claim of 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 her appeal, Petitioner worked as Chief Diversity Officer at the U.S. Immigration and Customs Enforcement, Office of the Chief Diversity Officer, in Washington, D.C. Petitioner alleged that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when:
1. On March 25, 2010, she learned that Agency management officials had allowed the Immigration Customs Enforcement Acting EEO Director and the Assistant Special Agent in Charge, San Diego, to conduct on-on-one interviews of her staff and contractors to investigate the staff's level of happiness with her;
2. On April 1, 2010, the Deputy Assistant Secretary for Management informed her that, effective April 2, 2010, she was to be removed from her position as EEO Director, that the EEO office no longer reported to her, and that she would be moved out of her current office space and into a less desirable office space;
3. Since April 2, 2010, she was tasked with additional duties outside of her position, including duties pertaining to the EEO Director's office, the position from which she was removed;
4. On April 8, 2010, the Assistant Secretary stated to her that he approved her removal from her position as EEO Director;
5. Since April 19, 2010, management subjected her to close scrutiny into her work performance and travel, even though similarly situated employees, not of her protected classes, have no been subjected to additional scrutiny;
6. Since April 19, 2010, she has been excluded from Diversity Meetings at headquarters, despite holding the position of Chief Diversity Officer;
7. As of July 5, 2010, management failed to timely issue her Mid-Year Evaluation, which was due on April 30, 2010, and a performance work plan outlining her duties and goals;
8. On June 4, 2010, she learned that her annual leave request had not been approved and was therefore unable to take the requested leave;
9. On June 8, 2010, she became aware that her performance was being evaluated by the Chief of Staff, despite not being in his direct chain of command;
10. On June 9, 2010, she was placed under the Deputy Assistant Secretary for Management's chain-of-command, but was also told to report to the Assistant Secretary, thus requiring her to report to two individuals, unlike similarly situated employees, not of her race, sex, and/or who have not participated in prior protected EEO activity;
11. in July 2010, her award submissions for her staff were reduced without consultation, while others were given the opportunity to discuss/defend award submissions;
12. on or around August 23, 2010, the Immigration Customs Enforcement Acting EEO Director made statements to Agency management officials, accusing her of "often act[ing] in [her] duties as Chief Diversity Officer without supervisor consent and/or Agency permission";
13. In August 2010, the Agency failed to issue her a Special Act Award, and attributed her accomplishments to other staff members in agency publications; and
14. In August 2010, she was constructively discharged from her Chief Diversity Officer position.
Petitioner filed a mixed case complaint (Agency No. HS-ICE-17869-2010), and the Agency issued a decision, finding that Petitioner was not discriminated against as alleged. Afterward, Petitioner filed an appeal with the MSPB. On November 4, 2011, an MSPB AJ issued an initial decision, finding that the MSPB lacked jurisdiction over the matter because Petitioner failed to raise a non-frivolous allegation that she resigned involuntarily from the Agency. Petitioner did not seek review by the full board.
ANALYSIS AND FINDINGS
When the MSPB denies jurisdiction in such matters, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. � 1614.302(a). Thus, the case will be considered a "non-mixed" matter and processed accordingly. See generally Schmitt v. Dep't of Transp., EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990). The Commission administratively closes this petition (Lewis v. Dep't of Homeland Security, EEOC Petitioner No. 0320120022) and refers the matter (Agency No. HS-ICE-17869-2010) to the Agency for further processing, as outlined below in the "Notice to the Parties."
NOTICE TO THE PARTIES
Petitioner is advised by operation of 29 C.F.R. � 1614.302(b) that the Agency, if it has not already done so, is required to process her allegations of discrimination pursuant to 29 C.F.R. � 1614.108(f). Within 30 calendar days of its reception of this decision, the Agency shall notify Petitioner of the right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision, pursuant to 29 C.F.R. � 1614.110.
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.
PETITIONER'S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court, based on the decision of the Merit Systems Protection Board, within thirty (30) calendar days of 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.
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
___8/24/12_______________
Date
2
0320120022
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320120022