0120121697
07-09-2012
Toni A. Keith, A.K.A. Toni A. Cooper Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Toni A. Keith,
A.K.A.
Toni A. Cooper
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120121697
Hearing No. 570-2010-01136X
Agency No. HS07FEMA0078
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 2, 2012, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Disaster Assistance Employee at the Agency's Business Management Division, Logistics Management Directorate facility in Washington DC. On June 1, 2007, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), age (55 and 56 years at time of incidents), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. on September 21, 2006, management asked Complainant to sign a statement of receipt of the Rules and Regulations, threatening "loss of wages;"
2. on October 18, 2006, the site manager summoned Complainant to the office and questioned her about calls she made to Agency Headquarters;
3. on October 21, 2006, management discussed Complainant's work performance and duties with Complainant in the presence of co-workers;
4. on October 21, 2006, management released Complainant from deployment; and
5. on April 15, 2007, Complainant learned that management had selected several similarly situated employees for deployment on multiple occasions but did not select Complainant for deployment.
The Agency dismissed claims 1 through 4 for untimely EEO Counselor contact and accepted claim 5 for investigation. Following an investigation the Agency issued a Final Decision on August 23, 2010 finding that Complainant failed to show that the Agency's legitimate nondiscriminatory reason for its action was a pretext for discrimination. Complainant appealed that Decision to this Commission and in a decision (Decision) dated January 7, 2011, we affirmed the Agency's Final Decision. See Cooper v. Department of Homeland Security, EEOC Appeal No. 0120103585. In the interim, however, on August 30, 2010 and prior to the Commission issuing its Decision, Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ) and the AJ, apparently unaware that Complainant had appealed to the Commission, proceeded to process the request. On January 18, 2012, however, the AJ dismissed the entire complaint on the grounds that the matter had already been addressed by the Commission. The Agency issued a Final Order on February 2, 2012 adopting the AJ's dismissal. Complainant now appeals from the Agency's February 2012 Final Order.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that an Agency attorney was not aware of the facts of her case, that the "procedural history" in the Agency's Final Order is "inaccurate and unfair," and that "the Final Agency Decision constructed by [certain Agency officials] was written on some of the specifications of my initial claim that the [Agency] EEO Office . . . never accepted which never became my case." Complainant further alleges that no Final Agency Decision was ever issued in her case, and that the Agency "has engaged in a cover up so as to not expose the true facts in my case." Complainant next refers to an incident in 2007 when an Agency management official (MO) allegedly recorded their conversation and was disciplined by the Agency. Complainant maintains that in a sworn statement made in 2008, MO said that she had contacted an EEO Counselor seeking to file a complaint against Complainant for allegedly making false statements against MO resulting in the discipline issued against MO and that MO, together with other management officials discussed removing Complainant from her position with the Agency. Complainant argues that MO retaliated against Complainant by refusing to deploy her and that the Agency was aware of MO's actions and did nothing to protect Complainant, thus breaching the No FEAR Act.
The Agency has not submitted a brief on appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R � 1614.107(a)(1), the Agency shall dismiss a claim that states the same claim that has been decided by the Commission. Complainant filed an appeal from the Agency's February 2, 2012 Final Order and the record shows that the same issues were addressed by this Commission in Cooper v. Department of Homeland Security, EEOC Appeal No. 0120103585. Accordingly, Complainant may not relitigate these issues before the Commission again. With regard to whether or not Cooper addressed the correct issues raised by Complainant in her Formal Complaint, if Complainant was dissatisfied with any aspect of that Decision, she could have filed a Request for Reconsideration, as explained in that Decision. With regard to any new issues raised on appeal that were not addressed in Cooper, Complainant may seek to file a new complaint addressing such issues.
CONCLUSION
For the above reasons, we AFFIRM the Agency's Final Order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
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. If you file a request to reconsider and also file a civil action, 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
July 9, 2012
__________________
Date
2
0120121697
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121697