U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raylene B.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Request No. 2022000221 Appeal No. 2019005655 Agency No. HS-FEMA-02112-2017 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Raylene B. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005655 (Sept. 9, 2021). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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, an Emergency Management Specialist, Hazard Mitigation Insurance Technical Specialist at various locations around the country for the Agency's Federal Insurance and Mitigation Administration located in Washington, D.C., filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), disability (chronic anxiety), and in reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000221 2 1. On October 16, 2016, May 19-21, 2017, and July 23-27, 2017, Complainant requested a reasonable accommodation for travel and lodging which the Agency failed to address; 2. On June 14, 2017, Complainant did not receive concurrence for a training opportunity; 3. On June 26, 2017, Complainant's supervisor (S1) (Hispanic/Caucasian) requested that Complainant be released from a disaster; 4. On June 26, 2017, Complainant was released from a disaster; 5. On or around July 6-10, 2017, and continuing through August 10, 2017, S1 harassed Complainant through emails; 6. On or about July 11, 2017, Complainant was harassed on a performance evaluation call and received a negative performance review; 7. On August 1, 2017, management denied Complainant training for FY 2017; 8. On August 10, 2017, S1 denied Complainant a work assignment; 9. On August 10, 2017, S1 denied Complainant deployment opportunities; 10. On August 11, 2017, S1 denied Complainant a locality pay increase; and 11. On or about September 28, 2017, management terminated Complainant's appointment. Following an initial investigation, the Agency decided that a supplemental investigation was necessary to adequately address all of Complainant’s claims. After the supplemental investigation was not timely completed, the Agency issued a final decision. In the decision, the Agency found that Complainant proved that the Agency subjected her to discrimination as alleged as to some of her claims, while Complainant failed to prove discrimination in others. Specifically, with regard to claims 1, 8, 9, and 10, the Agency found that since the supplemental investigation was not timely completed, it would draw an adverse inference that such an investigation would have shown that Complainant established a prima facie case with regard to those claims and that the Agency failed to articulate legitimate, nondiscriminatory reasons for its actions. Regarding the remaining claims, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. In the appellate decision, the Commission affirmed the final decision. To remedy the discrimination in the above-mentioned claims, the Commission ordered the Agency to conduct a supplemental investigation into Complainant’s entitlement to compensatory damages; to consider disciplining Complainant’s supervisors; to provide training to Complainant’s supervisor; and to post a notice. In her request for reconsideration, Complainant expresses her disagreement with the previous decision and reiterates arguments previously made on appeal. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep't of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). 2022000221 3 Rather, a reconsideration request is an opportunity to demonstrate that the appellate 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. Complainant has not done so here. Complainant has not presented any persuasive evidence to support reconsideration of the Commission's decision. 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. 2019005655 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 The Agency is ORDERED to undertake the following remedial actions as previously ordered to the extent it has not already done so: 1. Within 30 days of the date this decision is issued, the Agency shall post a notice in accordance with the statement below entitled “Posting Order.” 2. Within 60 days of the date this decision is issued, the Agency, if it has not already done so, shall provide two hours of EEO training by a qualified EEO professional to S1. The training will specifically focus on reprisal, race-based discrimination, and reasonable accommodation. 3. Within 60 days of the date this decision is issued, the Agency shall consider discipline against Complainant’s supervisor (S1). The Commission does not consider training to be a disciplinary action. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 is no longer employed by the Agency, the Agency shall furnish proof of the date of separation. 4. Within 75 calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation with respect to Complainant's claim for compensatory damages. The Agency shall allow Complainant to present evidence in support of her compensatory damages claim. See Carle v. Dep't of the Navy, EEOC No. 01922369 (Jan. 5, 1993). Complainant shall cooperate with the Agency in this regard. The Agency shall issue a final decision addressing the issue of compensatory damages within 120 days from the date this decision is issued. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2022000221 4 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) 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 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. 2022000221 5 You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 8, 2022 Date
