0520130316
08-27-2013
Sharisse Morris, Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Information Systems Agency), Agency.
Sharisse Morris,
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.
Request No. 0520130316
Appeal No. 0120102589
Agency Nos. DOD-DISA-STL-05-002, DOD-DISA-STL-05-008
DENIAL
Complainant timely requested reconsideration of the decision in Sharisse Morris v. Department of Defense, EEOC Appeal No. 0120102589 (February 5, 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 underlying case, Complainant filed two EEO complaints alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity when:
1. In June 2004, management placed her on the Voluntary Early Retirement Authority/Voluntary Separation Incentive Pay (VERA/VSIP) list because it received complaints about her as a team leader;
2. On June 25, 2004, management informed her that she would not be reassigned as a permanent supervisor into the Chief, Operating Section position (a position she had served a detail in since May 1, 2001) and management failed to inform her that the position was abolished in April 2004; and
3. From April 2004 to March 2005, management subjected her to a hostile work environment harassment when:
a. The EEO Director shared Complainant's confidential EEO information with the St. Louis Office Director, fabricated a reason for removal of personnel records from her Official Personnel Folder, interfered with the processing of her informal complaint by pressuring her to sign a settlement agreement, and management failed to investigate and provide her an opportunity to respond to complaints about her from contractors;
b. In July 2004, the EEO Director pressured Complainant to reframe her new reassignment claim as a settlement breach claim instead, and an EEO Counselor pressured her to sign a settlement agreement and failed to provide her with EEO counseling;
c. In February 2005, management tried to pressure her First Level Supervisor to discipline her over contractor complaints against her;
d. In February 2005, management placed her under surveillance and recorded her contact with contract employees; and
e. In January 2005, management instituted procedures aimed at allowing contractors to make false accusations against her.
The appellate decision addressed claims 1-3 on the merits and affirmed the Agency's final decision finding no discrimination. Specifically, the appellate decision found that Complainant failed to prove, by a preponderance of the evidence, that the Agency subjected her to disparate treatment or hostile work environment harassment based on race, sex, color, or reprisal.
In so finding, the appellate decision stated that the record revealed that the Agency's actions were in response to or related to addressing the following set of facts: (1) in 2004, the Agency planned a reduction in force and offered Complainant and other employees VERA/VSIP as a tool to decrease the workforce prior to the actual reduction; (2) prior to or about the same time, the Agency received complaints about Complainant from contractors who had employees placed at the Agency and who worked with Complainant; (3) the Agency took action to address the contractor complaints but did not take disciplinary action against Complainant; (4) in 2001, Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would place her in a permanent supervisory position; (5) the Agency was erroneously advised that Complainant could not receive a permanent supervisory position because she had fewer than three employees, but later retroactively reassigned her to the Chief, Operating Section position; and (6) when Complainant initiated EEO counseling regarding claims 1 and 2, she raised the issue of a permanent supervisory position with the EEO Counselor, who identified the claim as a breach of the 2001 settlement agreement. The appellate decision found that the Agency's actions were not based on impermissible factors and that the EEO staff sought to determine the appropriate handling of Complainant's claims.
In her request for reconsideration, Complainant contended that the appellate decision's "explicit and implied findings" require correction. In large part, Complainant focused on the actions of the EEO Office (claim 3a and 3b). Specifically, Complainant argued that the EEO Office's attempt to mischaracterize her reassignment claim (claim 2) as a breach of settlement agreement claim was inconsistent with the Commission's rules for interpreting settlement agreements and rules regarding the duties of an EEO Counselor. In addition, Complainant argued that the Agency did not have a procedure for addressing her allegations of improper complaint processing and that the Agency's lack of such a procedure was a per se violation of EEOC regulations. Finally, Complainant requested that the Commission review the arguments she previously made on appeal.
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in its ultimate finding of no discrimination. Although Complainant disagreed with some of the appellate decision's factual findings, her request did not establish that the Agency's actions in claims 1-3 were based on her race, sex, color, or prior EEO activity. Moreover, we find that claims 3a and 3b, to the extent that they involve the actions of the EEO Office during the pre-complaint processing of the reassignment claim (claim 2), cannot support Complainant's claim of hostile work environment harassment based on race, sex, color, or prior EEO activity. We note that allegations of dissatisfaction with the agency processing of a previously filed complaint or a pending complaint cannot be the subject of an EEO complaint.
See 29 C.F.R. � 1614.107(a)(8); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Nov. 9, 1999).1
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. 0120102589 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
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 (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
__8/27/13________________
Date
1 We remind the Agency that, when a complainant raises allegations of dissatisfaction regarding the processing of his or her pending complaint, the Agency official responsible for the quality of complaints processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, to the complaint file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. See EEO MD-110, Ch. 5, IV.D.2.
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0520130316
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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