0520150180
02-07-2017
Vina D.,1 Complainant, v. John F. Kelly, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Vina D.,1
Complainant,
v.
John F. Kelly,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Request No. 0520150180
Appeal No. 0120123169
Hearing No. 560-2008-00136X
Agency No. HS-07-TSA-001281
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120123169 (December 5, 2014). 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(c).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to grant the request.
BACKGROUND
During the time at issue, Complainant worked as a Transportation Security Officer at the Agency's Tulsa International Airport in Tulsa, Oklahoma. On May 20, 2007, she filed an EEO complaint alleging discrimination on the bases of sex, (female), age (over 40), disability, and reprisal when, in January 2007, she was issued a letter of proposed removed.
On August 29, 2001, the Agency issued a document identified as "Partial Acceptance for Investigation." Therein, the Agency dismissed the sex, age and disability based claims, arguing that they failed to state a claim because the removal was only proposed. The Agency then accepted the retaliation based claim, acknowledging that the standard for stating a claim of retaliation is different in that the alleged activity must be reasonably likely to deter a complainant or others from engaging in prior EEO activity. This complaint was investigated and Complainant requested a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). The AJ issued a decision without a hearing. The Agency implemented the AJ's decision. Complainant appealed that matter to the Commission and was subject of EEOC Appeal No. 0120093353 (Oct. 28, 2009).
In EEOC Appeal No. 0120093353, the Commission essentially found the underlying evidentiary record to be inadequate, and therefore vacated the Agency's final action. Following the Commission's decision, on June 28, 2012, the Agency issued a final decision in which it dismissed Complainant's complaint as moot after determining that Complainant had not been removed from the Agency pursuant to the 2007 termination proposed action. Complainant thereafter filed an appeal which was docketed as EEOC Appeal No. 0120123169.
In the previous decision, the Commission found that the Agency improperly dismissed the matter as moot. The decision noted that Complainant alleged a claim for compensatory damages as well as interim relief. As such, the decision found that the matter was not moot. Further, the decision noted that Complainant alleged that the Agency failed to supplement the record as ordered by the decision in EEOC Appeal No. 0120093353. The decision noted that the record did not provide any evidence that the Agency fully complied with the Commission's decision in EEOC Appeal No. 0120093353. As such, the Commission ordered the Agency to conduct a supplement evidentiary record with the information missing from the record as defined in EEOC Appeal No. 0120093353.
On request for reconsideration, the Agency contends that the previous decision erred. The Agency indicated the matter raised in Agency No. HS-07-TSA-001281 involved the proposed removal action which was subsequently acted upon and the subject of a second EEO complaint, namely, Agency No. HS-TSA-00964-2010. The Agency asserted that Complainant only appealed the final decision in Agency No. HS-07-TSA-001281 and did not appeal the final decision in Agency No. HS-TSA-00964-2010. The Agency argued that it had conducted the investigation and the reasons provided for the proposed termination involved the same reasons in the ultimate removal action which occurred in 2010 which was raised in Agency No. HS-TSA-00964-2010. As such, the Agency finds that the Commission should reopen the decision in EEOC Appeal No. 0120123169 and find that the Agency has complied with the supplemental investigation.
In response, Complainant argued the merits of her claim of discrimination. She re-litigated the facts as pertaining to the denial of her claim with the Office or Worker's Compensation Programs which eventually led to her proposed removal in 2007.
ANALYSIS
Upon review of the record, we grant the Agency's request for reconsideration. The previous decision found that the Agency failed to comply with the Commission's decision in EEOC Appeal No. 0120093353. However, a review of the record, the Agency provided a supplemental investigation which was concluded by February 22, 2010. Therefore, we conclude that the Agency has complied with the Commission's decision.
The previous decision also found that the matter was not moot for Complainant alleged that she was entitled to compensatory damages and interim relief. A review of the record, following the remand of the instant matter, the Agency moved to have the matter raised in EEOC Appeal No. 0120093353 to be consolidated with Complainant's other EEO complaint pending before the AJ on September 19, 2011. The Agency provided a copy of request for consolidation as part of the compliance record provided to the Commission's Compliance Officer. There is no indication that the AJ, in fact, consolidated the two claims. However, the AJ issued two Acknowledgement and Orders on October 6, 2011, for both Agency Nos. HS-07-TSA-001281 and HS-TSA-00964-2010 as EEOC Hearing Nos. 560-2008-00136X and 560-2011-00265X. We take administrative notice that Complainant withdrew her requests for a hearing with regard both EEOC Hearing Nos. 560-2008-00136X and 560-2011-00265X. It appears that the Agency issued two separate final decisions regarding these two EEO complaints rather than consolidating the matters.
We agree with the previous decision finding that the matter raised in Agency No. HS-07-TSA-001281 is not moot. However, we find that the claim raised in the instant matter was a preliminary step while the matter was under review by the Agency. The Agency did not take final action on the termination until 2010 which was raised in Agency No. HS-TSA-00964-2010. The Agency asserted that Complainant did not file an appeal on its final decision. We find that the Agency's assertion is erroneous. Complainant filed an appeal with the Commission on September 24, 2012.2 That appeal has been docketed as EEOC Appeal No. 0120152229.
The Commission finds that the instant matter of the proposed termination and the actual termination should be consolidated into a single matter. Specifically, the Commission has held that where an Agency action allegedly results in the denial of a term, benefit, or privilege of employment, the action, in this case, a termination, merges with the proposed action and states a claim. See Charles v. Dep't of the Treas., EEOC Request No. 05910190 (Feb. 25, 1991). Upon the merger of claims, the specific claim regarding the proposed action is dismissed and subsumed into the Complainant's dismissal claim. See Taylor v. U.S. Postal Serv., EEOC Appeal 01975649 (Sept. 18, 1998). As such, EEOC Request No. 0520150180 and Appeal No. 0120123169 shall be subsumed into and addressed by EEOC Appeal No. 0120152229, which is pending before the Commission. As such, the instant matter is administratively closed.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that the Agency's request meets the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to GRANT the request. The decision of the Commission in Appeal No. 0120123169 is VACATED and CLOSED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider.
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. 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 7, 2017
__________________
Date
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.
2 We note that Complainant sent in her appeal of the final decision in Agency No. HS-TSA-00964-2010 with another final decision. However, only one appeal was docketed at that time.
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