0520120353
12-12-2012
Kimberly A. Cain, Complainant, v. Dr. Rebecca Blank, Acting Secretary, Department of Commerce, Agency.
Kimberly A. Cain,
Complainant,
v.
Dr. Rebecca Blank,
Acting Secretary,
Department of Commerce,
Agency.
Request No. 0520120353
Appeal No. 0120114279
Agency No. 11-63-00223
DENIAL
The Agency timely requested reconsideration of the decision in Kimberly A. Cain v. Department of Commerce, EEOC Appeal No. 0120114279 (February 21, 2012). 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).
On June 8, 2011, Complainant filed a formal complaint in which she alleged that the Agency subjected her to reprisal because of her prior EEO activity when, on April 11, 2011, her supervisor refused to call security after she was verbally assaulted for the second time by a co-worker. In its final decision dated August 17, 2011, the Agency dismissed Complainant's complaint on the basis that it failed to state a claim of harassment because the alleged actions were not sufficiently severe or pervasive.
In our previous decision, the Commission found that the Agency improperly dismissed Complainant's complaint. The Commission determined that a fair reading of Complainant's complaint and counseling report revealed that the essence of Complainant's complaint is that she was subjected to ongoing harassment by a co-worker, and management was unwilling to take appropriate action to protect her. The Commission noted that, on appeal, Complainant asserted that the same co-worker previously screamed at her in January 2011 using obscene language and gestures, and on April 11, 2011, told her, "I am going to fuck you up." The Commission concluded that Complainant's allegations were sufficient to state a claim of harassment.
In its request for reconsideration, the Agency asserts that the Commission improperly considered Complainant's appellate statement because Complainant did not serve a copy of her statement on the Agency. The Agency maintains that Complainant's failure to serve the Agency with a copy of her appellate statement deprived the Agency of the opportunity to respond to her arguments on appeal. The Agency also maintains that our previous decision improperly found that Complainant's complaint stated a claim based on assertions that were first made by Complainant on appeal but not alleged in her formal complaint or during counseling.
We note 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 (2) will have a substantial impact on the policies, practices, or operations of the Agency.
The Agency has not done so here. In this case, Complainant alleged in her formal complaint that she was subjected to reprisal when her supervisor did not call security or otherwise protect her from harassment from a co-worker who had previously verbally assaulted Complainant. Without considering additional assertions made by Complainant on appeal, we find that the actions alleged in Complainant's complaint state a claim of actionable harassment. In so finding, we note that a complainant is protected from any actions that are reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, "Retaliation," No. 915.003 (May 20, 1998), at 8-15. We further note that the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). In this case, we find that disregarding an employee's concerns about safety and harassment is reasonably likely to deter EEO activity. Consequently, we find that our previous decision properly reversed the Agency's dismissal of Complainant's complaint for the reasons set forth in this decision.
Therefore, 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 decision in EEOC Appeal No. 0120114279 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 in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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
December 12, 2012
Date
2
0520120353
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120353