0520130257
06-18-2013
Elaine I. Chan, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Elaine I. Chan,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Request No. 0520130257
Appeal No. 0120123022
Hearing No. 570-2012-00090X
Agency No. HSCIS00832011
DENIAL
The Agency timely requested reconsideration of the decision in Elaine I. Chan v. Department of Homeland Security, EEOC Appeal No. 0120123022 (January 8, 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(b).
In the appellate decision, Complainant, a Special Assistant, GS-15 at the Agency's Verification Division, Customer Contact Operation Branch, alleged that she was subjected to discrimination on the bases of race, sex, color, age, and in reprisal for prior EEO activity when: (1) in November 2009, UCIS notified her, without prior notice or justification, that she was being sent on a five-month detail to the Office of Special Counsel at the Department of Justice (DOJ); (2) in November 2009, USCIS undermined her supervisory authority when adverse personnel actions were taken against her staff without any consultation or notice to her as the first-line supervisor; (3) on March 11, 2010, USCIS abruptly stopped a staff meeting, and asked Complainant to leave immediately, and the staff was told not to communicate with her; (4) on August 9, 2010, USCIS removed her from her supervisory position as a Deputy Branch Chief, to a non-supervisory Special Assistant position; (5) on October 28, 2010, USCIS presented her with a Fiscal Year 2010 Performance Appraisal and rating that failed to comply with administrative processes or the terms of the USCIS DOJ Memorandum of Understanding, and ignored her right to appeal the low rating; (6) on February 3, 2011, USCIS notified her that the compensation for her special act and performance awards, issued in 2008, would not be awarded; and (7) on July 15, 2011, USCIS informed her that it would not reconsider her 2010, performance award because she raised the issue in her EEO complaint.
Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the Agency filed a Motion to Dismiss which alleged that the complaint should be dismissed for untimely EEO Counselor contact. The AJ granted the Motion and issued an Order of Dismissal finding that Complainant's initial EEO Counselor contact was on March 11, 2011, which was beyond the 45-day limitation period. The Agency fully implemented the AJ's decision.
The Commission found that the AJ improperly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. Specifically, the Commission found that a fair reading of the record reflected that the matters identified in claims 1 - 7 were part of Complainant's harassment claim; and as various claims that comprise this complaint occurred within the 45-day time period, the entire complaint was timely.
REQUEST FOR RECONSIDERATION CONTENTIONS
The Agency contends that by Complainant's own admission she suspected discrimination in October or November 2009, but did not initiate EEO Counseling until March 11, 2011. The Agency also contends that claims 1 - 5 and a portion of claim 6 were abandoned by Complainant because they were deemed separate incidents and therefore were dismissed. The Agency argues that Complainant did not seek their reinstatement with the AJ or challenge the dismissals on appeal with the Commission. For this reason, the Agency argues that claims 1 - 5 and a portion of claim 6 should not have been considered.
In response, Complainant, among other things, contends that the appellate decision properly found that her claims were timely filed within 45 days of the last two discriminatory events which made all of her claims timely.
ANALYSIS AND FINDINGS
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(b), and it is the decision of the Commission to deny the request. The Commission has long held that in order to prevent fragmentation of a harassment claim the claims are to be viewed in their entirety. The Agency in its request for reconsideration argued that it dismissed some of the events as untimely pursuant to 29 C.F.R. � 1614.107(a)(2). However, the Supreme Court of the United States held that a Complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002). Therefore, the appellate decision correctly determined that these claims were improperly dismissed on the grounds of untimely EEO Counselor contact. A fair reading of these events reflects that they are part of a broader harassment claim as identified above. Moreover, because the incidents that make up Complainant's hostile work environment claim "collectively constitute one 'unlawful employment practice," the entire claim is actionable because at least one incident that is part of the claim occurred within 45 days of EEO Counselor contact. Accordingly, as some of the harassment incidents were timely raised with an EEO Counselor, we find that all incidents in the harassment claim were timely raised.1
Further, with respect to the Agency's argument that the Commission should not have considered claims 1 - 5 and a portion of claim 6 because they were abandoned by Complainant, the Commission finds that this argument also fails. Specifically, the Commission notes that the Administrative Judge (AJ) ruled that claims 1 through 5 and a portion of claim 6 should not be reinstated because Complainant failed to contact an EEO Counselor within 45 days of the alleged discriminatory incidents. Thereafter, the Agency fully implemented the AJ's decision in its final order. Complainant filed an appeal to the Commission from the Agency's final order. The Commission finds that because the AJ made a finding on these claims and the Agency implemented the AJ's decision, these claims were revived and were proper for review.2
We therefore find that the Agency's request for reconsideration fails to meet the criteria of 29 C.F.R. � 1614.405(b). Accordingly, the decision in EEOC Appeal No. 0120123022 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
Within 30 days from the date this decision becomes final, the Agency shall submit to the Hearings Unit of the Washington Field Office a request for a hearing, as well as the complaint file. The Agency shall provide written notification to the Compliance Officer referenced below that the hearing request and complaint file have been transmitted to the Hearings Unit of the Washington Field Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 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.
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
___6/18/13_______________
Date
1 Even if the discrete acts that are part of this hostile work environment claim are not independently actionable because they were not timely raised, the only consequence is that Complainant cannot receive relief for the discrete acts themselves. But those discrete acts are still part of the timely raised hostile work environment claim and can be considered as background evidence in determining whether the harassment was sufficiently severe or pervasive and the appropriate remedy for the hostile work environment.
2 The Agency is reminded that "it is well settled that the review of a case on appeal is not limited to the issues raised by the [Complainant]." Charles v. Dep't of the Navy, EEOC Request No. 05880256 (Nov. 29, 1988) (rejecting Complainant's assertion that the scope of the Commission's appellate authority is limited to issues raised by a party on appeal).
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0520130257
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520130257