id int64 0 5k | url stringlengths 74 146 | filename stringlengths 11 84 | file_type stringclasses 2 values | content_type stringclasses 2 values | char_count int64 1.2k 1.5M | case_caption stringlengths 0 13.2k | date stringlengths 0 19 | legal_analysis_summary stringlengths 16 262k | full_text stringlengths 1.12k 457k | case_citations listlengths 0 76 | embedding listlengths 384 384 |
|---|---|---|---|---|---|---|---|---|---|---|---|
0 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01a53853.txt | 01a53853.txt | TXT | text/plain | 14,292 | Randy Mack v. Department of the Army 01A53853 August 16, 2005 . Randy Mack, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency. | August 16, 2005 | Appeal Number: 01A53853
Complaint Allegations:
In his complaint, complainant alleged that he was subjected to discrimination on the basis of race (Black) when after voluntarily transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort Jackson, South Carolina, complainant's pay rate was reduced from $22.64 per hour to $17.24 per hour, although he was performing the same work at Fort Jackson that he had previously performed for $22.64 an hour at Cherry Point. Complainant alleged that on November 2, 2004, he learned that a Caucasian male in Plumber Maintenance at Fort Jackson had also accepted a voluntary transfer from Cherry Point and did not have his pay reduced. In its decision dismissing the complaint, the agency indicated that complainant became aware of the difference in pay on November 2, 2004, but did not express his intent to pursue the EEO process until February 24, 2005.
Case Facts:
Complainant filed an appeal with this Commission from the April 14,
2005 agency decision dismissing his complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for failure to contact an EEO Counselor in a timely
manner.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (Black) when after voluntarily
transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort
Jackson, South Carolina, complainant's pay rate was reduced from $22.64
per hour to $17.24 per hour, although he was performing the same work at
Fort Jackson that he had previously performed for $22.64 an hour at Cherry
Point. Complainant alleged that on November 2, 2004, he learned that a
Caucasian male in Plumber Maintenance at Fort Jackson had also accepted
a voluntary transfer from Cherry Point and did not have his pay reduced.
In its decision dismissing the complaint, the agency indicated that
complainant became aware of the difference in pay on November 2, 2004,
but did not express his intent to pursue the EEO process until February
24, 2005.
The record reveals that the alleged discriminatory pay rate reduction
occurred on October 31, 2004. The record reveals further that complainant
met with an EEO Counselor on December 9, 2004, concerning his rate of pay.
The record also contains an agency EEO form Memorandum, dated December 9,
2004, in which complainant checked off item "c" on the form. Item "c"
stated that complainant was deferring his decision "to pursue my matter"
until a later date. Item "c" also stated that complainant had been
informed and understood that he had 45 calendar days from the date
of the alleged discrimination or the date that he became aware of the
discrimination process to file an EEO complaint. The Memorandum also
indicated that the EEO complaint and mediation processes were explained to
complainant. The record reveals that complainant signed the Memorandum.
The record contains electronic mail messages which reflect that the
EEO Counselor was in communication with the Civilian Personnel Advisory
Center (CPAC) regarding complainant's rate of pay. A handwritten note
appearing next to a January 5, 2005 electronic mail message states that
the EEO Counselor had updated complainant on January 12. A January 13,
2005 electronic mail from the CPAC Director to agency personnel states
that complainant's official personnel matter was needed regarding an
"EEO issue." The record also contains an electronic mail message, also
dated January 13, 2005, to the EEO Counselor from the CPAC Director in
which the CPAC Director stated that the "CPOC" still had not received
complainant's official personnel folder. A February 2, 2005 electronic
mail message from the CPAC Director reflects that the CPAC Director met
with complainant on February 2, 2005, and that after the CPAC Director
explained to complainant that his pay was correct, complainant stated to
her that he had a better understanding of his concerns. The February
2, 2005 electronic mail message reflects that the EEO Counselor was
sent a copy. A handwritten note, dated February 3, 2005, which was
written by the EEO Counselor on a copy of an electronic mail message,
reflects that complainant called the EEO Counselor on February 3, 2005.
The handwritten note states that complainant would not pursue the matter
and that he regretted that his co-worker may have been overpaid and
might have to re-pay the overpayment.
The record also contains complainant's affidavit, dated May 31, 2005.
Complainant stated in his affidavit that upon learning of the pay
difference, he contacted an EEO Counselor with the intention of beginning
the EEO process and that he believed that he had complied with the first
step of the EEO process by contacting an EEO Counselor. Complainant also
stated that in the December 9, 2004 meeting with the EEO Counselor, the
EEO Counselor informed complainant that complainant would receive other
information concerning his claim as soon as the EEO Counselor returned
to work from having surgery and that there would be no problem with any
filing deadlines. Complainant further stated in his affidavit that he
believed that he was misled by the EEO Counselor about the procedure
for filing a formal complaint and that the form he signed on December 9,
2004, did not explain to him how to file a formal EEO complaint nor did
the EEO Counselor explain to him how to file a formal complaint.
The record contains the June 30, 2005 affidavit of the EEO Counselor.
The affidavit reveals that the EEO Counselor met with complainant on
December 9, 2004, regarding complainant's rate of pay and that the EEO
Counselor determined that the purpose of the meeting was that complainant
was seeking information on the EEO process. The affidavit also reveals
that the EEO Counselor explained the informal and formal stages of the EEO
complaint process to complainant and "emphasized" the 45-day time limit
for filing a complaint. The EEO Counselor stated in the affidavit that he
emphasized to complainant that complainant had not initiated an informal
EEO complaint and at the time, complainant only expressed his desire
to obtain a satisfactory answer from CPAC without filing a complaint.
The EEO Counselor stated that complainant informed him that complainant
had previous discussions with CPAC personnel regarding his pay rate and
he wanted to give them a chance to respond before he took any actions.
The EEO Counselor stated that although he told complainant that he would
be away from the office on sick leave, he did not tell complainant that
he would contact him. The EEO Counselor stated that he told complainant
to contact Counselor B, an EEO Specialist, if he changed his mind and
wanted to file an informal complaint. The EEO Counselor further stated
that he was on sick leave from December 13, 2004, until January 10, 2005.
The EEO Counselor stated that because of his desire to assist complainant
in obtaining answers, he asked for and obtained complainant's permission
to contact CPAC personnel on his behalf. The EEO Counselor also stated
that he was sure that complainant understood that his offer to assist
him was not his initiation of an informal complaint.
In his affidavit, the EEO Counselor stated further that the CPAC
Director informed him that she had met with complainant on February 2,
2005, and provided complainant with an explanation regarding his pay
and complainant told her that he understood. The EEO Counselor also
stated that complainant called him on February 3, 2005, to say that
he had accepted the CPAC's explanation and that he would not pursue an
EEO complaint. The EEO Counselor further stated that on February 24,
2005, complainant contacted him and expressed his desire for the first
time to proceed with an EEO complaint and that on February 28, 2005,
he assigned another EEO Counselor to counsel complainant.
In his affidavit, the EEO Counselor stated that at no time did he lead
complainant to believe that complainant should not be concerned with
timeliness nor did he tell complainant that he would respond to him in
writing about his EEO complaint. The EEO Counselor also stated that he
never discouraged complainant from filing an EEO complaint.
Legal Analysis:
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations also provide that the agency or the Commission shall
extend the time limits when the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to
waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c).
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to the
EEO process and exhibit an intent to begin the EEO process. See Allen
v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
The Commission has also consistently held that utilization of internal
agency procedures, union grievances, and other remedial processes does
not toll the time limit for contacting an EEO Counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989).
Upon review, the Commission finds that the agency's dismissal was proper.
We find that when complainant contacted the EEO Counselor on December
9, 2004, complainant did not demonstrate an intent to commence the EEO
process. The first date the record persuasively shows that complainant
contacted an EEO Counselor with the intent to commence the EEO process
was on February 24, 2005, which was beyond the 45-day time limit.
We note that complainant agreed on December 9, 2004, to defer his
decision to pursue the matter until a later date. The form completed by
complainant on December 9, 2004, specifically notes a 45-day time limit.
Even if complainant was confused, as he claims, and thought the 45-day
time limit commenced on December 9, 2004, he still failed to make such
contact within 45 days of December 9, 2004.
Final Decision:
Accordingly, the agency's dismissal of the complaint is AFFIRMED. | Randy Mack v. Department of the Army
01A53853
August 16, 2005
.
Randy Mack,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A53853
Agency No. ARJACKSON04DEC08397
DECISION
Complainant filed an appeal with this Commission from the April 14,
2005 agency decision dismissing his complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for failure to contact an EEO Counselor in a timely
manner.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (Black) when after voluntarily
transferring as a plumber WG-09 from Cherry Point, North Carolina to Fort
Jackson, South Carolina, complainant's pay rate was reduced from $22.64
per hour to $17.24 per hour, although he was performing the same work at
Fort Jackson that he had previously performed for $22.64 an hour at Cherry
Point. Complainant alleged that on November 2, 2004, he learned that a
Caucasian male in Plumber Maintenance at Fort Jackson had also accepted
a voluntary transfer from Cherry Point and did not have his pay reduced.
In its decision dismissing the complaint, the agency indicated that
complainant became aware of the difference in pay on November 2, 2004,
but did not express his intent to pursue the EEO process until February
24, 2005.
The record reveals that the alleged discriminatory pay rate reduction
occurred on October 31, 2004. The record reveals further that complainant
met with an EEO Counselor on December 9, 2004, concerning his rate of pay.
The record also contains an agency EEO form Memorandum, dated December 9,
2004, in which complainant checked off item "c" on the form. Item "c"
stated that complainant was deferring his decision "to pursue my matter"
until a later date. Item "c" also stated that complainant had been
informed and understood that he had 45 calendar days from the date
of the alleged discrimination or the date that he became aware of the
discrimination process to file an EEO complaint. The Memorandum also
indicated that the EEO complaint and mediation processes were explained to
complainant. The record reveals that complainant signed the Memorandum.
The record contains electronic mail messages which reflect that the
EEO Counselor was in communication with the Civilian Personnel Advisory
Center (CPAC) regarding complainant's rate of pay. A handwritten note
appearing next to a January 5, 2005 electronic mail message states that
the EEO Counselor had updated complainant on January 12. A January 13,
2005 electronic mail from the CPAC Director to agency personnel states
that complainant's official personnel matter was needed regarding an
"EEO issue." The record also contains an electronic mail message, also
dated January 13, 2005, to the EEO Counselor from the CPAC Director in
which the CPAC Director stated that the "CPOC" still had not received
complainant's official personnel folder. A February 2, 2005 electronic
mail message from the CPAC Director reflects that the CPAC Director met
with complainant on February 2, 2005, and that after the CPAC Director
explained to complainant that his pay was correct, complainant stated to
her that he had a better understanding of his concerns. The February
2, 2005 electronic mail message reflects that the EEO Counselor was
sent a copy. A handwritten note, dated February 3, 2005, which was
written by the EEO Counselor on a copy of an electronic mail message,
reflects that complainant called the EEO Counselor on February 3, 2005.
The handwritten note states that complainant would not pursue the matter
and that he regretted that his co-worker may have been overpaid and
might have to re-pay the overpayment.
The record also contains complainant's affidavit, dated May 31, 2005.
Complainant stated in his affidavit that upon learning of the pay
difference, he contacted an EEO Counselor with the intention of beginning
the EEO process and that he believed that he had complied with the first
step of the EEO process by contacting an EEO Counselor. Complainant also
stated that in the December 9, 2004 meeting with the EEO Counselor, the
EEO Counselor informed complainant that complainant would receive other
information concerning his claim as soon as the EEO Counselor returned
to work from having surgery and that there would be no problem with any
filing deadlines. Complainant further stated in his affidavit that he
believed that he was misled by the EEO Counselor about the procedure
for filing a formal complaint and that the form he signed on December 9,
2004, did not explain to him how to file a formal EEO complaint nor did
the EEO Counselor explain to him how to file a formal complaint.
The record contains the June 30, 2005 affidavit of the EEO Counselor.
The affidavit reveals that the EEO Counselor met with complainant on
December 9, 2004, regarding complainant's rate of pay and that the EEO
Counselor determined that the purpose of the meeting was that complainant
was seeking information on the EEO process. The affidavit also reveals
that the EEO Counselor explained the informal and formal stages of the EEO
complaint process to complainant and "emphasized" the 45-day time limit
for filing a complaint. The EEO Counselor stated in the affidavit that he
emphasized to complainant that complainant had not initiated an informal
EEO complaint and at the time, complainant only expressed his desire
to obtain a satisfactory answer from CPAC without filing a complaint.
The EEO Counselor stated that complainant informed him that complainant
had previous discussions with CPAC personnel regarding his pay rate and
he wanted to give them a chance to respond before he took any actions.
The EEO Counselor stated that although he told complainant that he would
be away from the office on sick leave, he did not tell complainant that
he would contact him. The EEO Counselor stated that he told complainant
to contact Counselor B, an EEO Specialist, if he changed his mind and
wanted to file an informal complaint. The EEO Counselor further stated
that he was on sick leave from December 13, 2004, until January 10, 2005.
The EEO Counselor stated that because of his desire to assist complainant
in obtaining answers, he asked for and obtained complainant's permission
to contact CPAC personnel on his behalf. The EEO Counselor also stated
that he was sure that complainant understood that his offer to assist
him was not his initiation of an informal complaint.
In his affidavit, the EEO Counselor stated further that the CPAC
Director informed him that she had met with complainant on February 2,
2005, and provided complainant with an explanation regarding his pay
and complainant told her that he understood. The EEO Counselor also
stated that complainant called him on February 3, 2005, to say that
he had accepted the CPAC's explanation and that he would not pursue an
EEO complaint. The EEO Counselor further stated that on February 24,
2005, complainant contacted him and expressed his desire for the first
time to proceed with an EEO complaint and that on February 28, 2005,
he assigned another EEO Counselor to counsel complainant.
In his affidavit, the EEO Counselor stated that at no time did he lead
complainant to believe that complainant should not be concerned with
timeliness nor did he tell complainant that he would respond to him in
writing about his EEO complaint. The EEO Counselor also stated that he
never discouraged complainant from filing an EEO complaint.
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations also provide that the agency or the Commission shall
extend the time limits when the individual shows that he or she was
not notified of the time limits and was not otherwise aware of them,
that he or she did not know and reasonably should not have known that
the discriminatory matter or personnel action occurred, that despite
due diligence he or she was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission.
See 29 C.F.R. § 1614.105(a)(2). The time limits are also subject to
waiver, estoppel and equitable tolling. See 29 C.F.R. § 1614.604(c).
The Commission has held that in order to establish EEO Counselor contact,
an individual must contact an agency official logically connected to the
EEO process and exhibit an intent to begin the EEO process. See Allen
v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996).
The Commission has also consistently held that utilization of internal
agency procedures, union grievances, and other remedial processes does
not toll the time limit for contacting an EEO Counselor. See Hosford
v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9,
1989).
Upon review, the Commission finds that the agency's dismissal was proper.
We find that when complainant contacted the EEO Counselor on December
9, 2004, complainant did not demonstrate an intent to commence the EEO
process. The first date the record persuasively shows that complainant
contacted an EEO Counselor with the intent to commence the EEO process
was on February 24, 2005, which was beyond the 45-day time limit.
We note that complainant agreed on December 9, 2004, to defer his
decision to pursue the matter until a later date. The form completed by
complainant on December 9, 2004, specifically notes a 45-day time limit.
Even if complainant was confused, as he claims, and thought the 45-day
time limit commenced on December 9, 2004, he still failed to make such
contact within 45 days of December 9, 2004.
Accordingly, the agency's dismissal of the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
August 16, 2005
__________________
Date
| [
"Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999)",
"Allen v. United States Postal Service, EEOC Request No. 05950933 (July 9, 1996)",
"EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989)",
"29 C.F.R. § 1614.107(a)",
"29 C.F.R... | [
-0.04757063090801239,
0.04877230525016785,
0.00878120306879282,
0.06979085505008698,
-0.008883798494935036,
-0.0007873421418480575,
0.011349136009812355,
0.009545650333166122,
-0.054289329797029495,
-0.002256119856610894,
0.006861275061964989,
-0.07647523283958435,
0.03163089603185654,
-0.... |
1 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120181186.pdf | 0120181186.pdf | PDF | application/pdf | 24,235 | Damaris M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. | December 11, 2017 | Appeal Number: 0120181186
Background:
During the period at issue, Complainant worked as a Customer Services, EAS -17, at the
Agency’s Fleetwood Station in Houston, Texas. On February 22, 2017, Complainant filed a formal EEO complaint . As summarized by the
Agency, Complainant claimed that the Agency discriminated against her based on sex (fe male)
and in reprisal for prior protected EEO activity when:
1. on unspecified dates, Complainant was sexually harassed by an EEO ADR Specialist (“EEO Specialist”) when the EEO Specialist asked her to call him, to
send him pictures, to visit him at work, and when he hugged her and pressed his erection against her; and
2. on December 6, 2016, Complainant was not paid when she was required to attend
an investigative interview.
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the notice.
On December 11, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) , finding no discrimination.
The instant appeal followed. On appeal, Complainant ar gues that the Agency failed to
investigate her “80 incidents/complaints of retaliation, discrimination, sexual harassment, being black balled, being falsely accused three times of Claimant Fraud and Obstruction of Medical, slander and libel against her.” Complainant argues that the Agency improperly reduced her
formal complaint to the two incidents at issue. | Damaris M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120181186
Agency No. 6X000000517
DECISION
The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 11, 2017 final decision concerning an equal employment opportunity (EEO) complaint claiming
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.
BACKGROUND
During the period at issue, Complainant worked as a Customer Services, EAS -17, at the
Agency’s Fleetwood Station in Houston, Texas. On February 22, 2017, Complainant filed a formal EEO complaint . As summarized by the
Agency, Complainant claimed that the Agency discriminated against her based on sex (fe male)
and in reprisal for prior protected EEO activity when:
1. on unspecified dates, Complainant was sexually harassed by an EEO ADR Specialist (“EEO Specialist”) when the EEO Specialist asked her to call him, to
send him pictures, to visit him at work, and when he hugged her and pressed his erection against her; and
2. on December 6, 2016, Complainant was not paid when she was required to attend
an investigative interview.
After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant did not respond to the notice.
On December 11, 2017, the Agency issued the instant final decision, pursuant to 29 C.F.R.
§ 1614.110(b) , finding no discrimination.
The instant appeal followed. On appeal, Complainant ar gues that the Agency failed to
investigate her “80 incidents/complaints of retaliation, discrimination, sexual harassment, being black balled, being falsely accused three times of Claimant Fraud and Obstruction of Medical, slander and libel against her.” Complainant argues that the Agency improperly reduced her
formal complaint to the two incidents at issue.
ANALYSIS AND FINDINGS
Preliminary Matter – Claims at Issue
As an initial matter, we address Complainant’ s argument that the Agency failed to investigate all
80 incidents she included in her formal complaint. Our review of the record indicates that the Agency notified Complainant, by a May 12, 2017 Acceptance for Investigation letter, that her formal complaint included “extensive background information referencing incidents that occurred beginning in 2001 and continuing to the current date.” The letter further informed Complainant that she had “file d 23 additional EEO complaints from 2001 through 2016,” and
that information she provided in her formal complaint representing claims that have already been
processed as part of her 23 prior EEO complaint would only be considered as background information. Additionally, the letter also provided Complainant the opportunity to submit a written response within 7 days of receipt of the May 12, 2017 letter if she did not agree with the defined accepted issues. The record does not indicate that Complainant submitted a response.
Therefore, we find that the Agency properly defined the accepted claims at issue. Disparate Treatment: Claim 2
A claim of disparate treatment is examined under the three -part analysis first enunciated in
McDonnell Douglas Corporation v. Green
, 411 U.S. 792 (1973). For complainant to prevail, she
2 The Agency initially determined that claim 1 was untimely raised with an EEO Counselor, and
therefore could be dismissed, p ursuant to 29 C.F.R. § 1614.107(a)(2) . However, for the sake of
argument that the matters was timely raised , the Agency addressed this claim on the merits ,
which will be the focus of our analysis.
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas , 411 U.S. at 802; Furnco
Construction Corp. v. Waters , 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine , 450 U .S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason.
See St. Mary’s Honor
Cent er v. Hicks , 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination.
See U.S. Postal Service
Board of Governors v. Aikens , 460 U.S. 711, 713- 714 (1983); Hernandez v. Department of
Transportation , EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department o f Health
and Human Services , EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy , EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for not paying
Complainant on December 6, 2016. Complainant’s supervisor (“S1”) stated that at the time of
the investigative interview, Complainant was on injury compensation and she would not be able to be paid in addition to being on compensation.
The EEO Compliance and Appeals Manager (“M1”) testified that Complainant was not required
to attend the December 6, 2016 investigative interview . Instead, M1 stated that he encouraged
Complainant to “cooperate with the inquiry.” M1 stated that he believed that the investigative
interview lasted 2 ½ to 3 hours. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on
Complainant’s sex and reprisal for prior protected EEO activity .
Sexual Harassment: Claim 1 To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) s he belongs to a protected class; (2) s he was
subjected to unwelcome sexual advances, requests for sexual fav ors, or other verbal or physical
conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimida ting, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv. , EEOC
Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be
evaluated from t he objective viewpoint of a reasonable person in the victim's circumstances. See
Harris v. Forklift Systems, Inc. , 510 U.S. 17 (1993); Henson v. City of Dundee , 682 F.2d 897
(11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc. , EEOC Notice No.
915.002 (Mar. 8, 1994).
Here, we agree with the Agency’s determination that the record fails to support that Complainant was subjected to sexual harassment.
Complainant stated that the EEO Specialist requested that she call him, send him pictu res, and
visit him at work. Complainant did not specify when the EEO Specialist allegedly made these
request and Complainant indicated that she never asked the EEO Specialist to refrain from making these requests. Regarding requests for calls, Complainant testified that the EEO Specialist wanted her to call him for various reasons including the following : to come by his office; to inform him when she
was at the District Office; to celebrate her promotion and non- promotion; to discuss other EEO
complaints; to request hugs; and because she “owed him.” Regarding the requests for pictures, Complainant stated that the EEO Specialist would request a “new” picture or say that she “owe[d]” him and she “did not know his reas on for wanting
pictures of [her] except for the fact [she] inferred he was trying to have a sexual relationship with
[her] that was unwarranted and unwanted.” Complainant explained that she sent “selfie face
pictures” to the EEO Specialist and she re quested that he send her pictures only because he asked
her for pictures.
Regarding the office visit requests, Complainant explained that the EEO Specialist wanted her to come by the District office “JUST TO SEE HIM” but she would only go to the District Office if
she was on official business (emphasis in original) . Complainant further explained that the EEO
Specialist would stand around in the hallways looking for her when she would inform him, per
his request, that she was in the building.
Regarding the request for hugs, Complainant stated that the EEO Specialist hugged her in his
office.
3 Complainant further stated that during the hug, the EEO Specialist “became se xually
aroused and his private parts were pressed against [her] body.” Complainant explained that the hug was initiated by the EEO Specialist. B ecause the EEO Specialist had the door close d, there
were no witnesses to the incident. Complainant stated tha t she was “shocked,” “afraid,” and
“scared” because the incident reminded her of what “[another manager] did to [her] in his office with the door shut in 2001.”
4 Complainant further stated that she “may not have shown any
3 Complainant does not specify in her affidavit when this alleged incident occurred.
4 Complainant stated that another manager allegedly “sexually assaulted [her] in his office ” in
2001.
reaction at the time,” but the EEO Specialist’s conduct was “unwelcomed,” “undesirable and
offensive ” and “she felt sick.” Complainant indicated that she notified “ treating physicians,
friends, co- workers, doctors, psychologists, and psychiatrists” about the incident but did not
specify which Agency management officials she informed. However, Complainant stated that an
investigation regarding this incident occurred on December 6, 2016.
The EEO Specialist testified that he previously worked on prior EEO complaints Complainant
had filed. The EEO Specialist explained that Complainant alleged a sexual harassment claim against him after he informed Complainant that sh e could not serve as a representative for a craft
employee in the employee’s redress mediation because of Agency policy .
5 The EEO Specialist
denied asking Complainant to call him, to visit him at work, or to send him pictures . However,
the EEO Specialist explained that Complainant sent him pictures of her face via text message on
her personal cell phone 4 -5 times. The EEO Specialist further explained that the pictures were
sent “in conjunction with a holiday” and Complainant was “wishing [him] a happy holiday.”
The EEO Specialist also admitted that he responded to one of these holiday texts f rom
Complainant by texting a picture of himself “sitting in [his] office behind [his] desk” during either Christmas or New Years. The EEO Specialist clarified that this was the only occasion that
he texted a picture to Complainant. The EEO Specialist further explained that Complainant voluntarily visited him in 2014 to inform
him that she had been promoted, and to thank him for giving her suggestions as to how she could
complete her application for her promotion. The EEO Specialist stated that this en counter
resulted in a “brief congratulatory hug,” but the EEO Specialist could not remember who
initiated the hug. The EEO Specialist denied having an erection during the brief hug , clarified
that the hug occurred in the workplace but not in his office, and confirmed that this hug was the
only hug he had with Complainant. M1 stated that he conducted an outside Fact Finding Team to complete an investigation after
Complainant informed him on December 6, 2016, during an investigation interview , that the
EEO Specialist had allegedly hugged her and pressed his erection against her “sometime in
2013.” M1 explained that he determined from the Fact Finding Report that there was no
evidence of sexual harassment. M1 further explained that to his knowledge, Compla inant did not
voice an objection to the EEO Specialist ’s alleged request for him to call her, and M1 determined
that the evidence Complainant submitted indicated that “she called and texted [the EEO Specialist ] several times of her own volition.” M1 explai ned that Complainant informed him that
she called the EEO Specialist for EEO purposes . However, M1 stated that Complainant’s text
messages “appeared to be unrelated to [the EEO Specialist ’s] duties” and some of the text
messages “appeared to have been ini tiated by [Complainant].” M1 further stated that the
evidence indicated that Complainant text ed the EEO Specialist on June 5, 2015, informing him
that she would be at his office that day and the EEO Specialist responded that he was at a
5 The EEO Specialist stated that Agency policy prohibits managers from serving as a craft
employee’s representative in the redress proc ess.
conference in Washington, D.C. and would call Complainant back later. Therefore, M1
determined from the report that Complainant and the EEO Specialist had an “outside of work
friendship which [the EEO Specialist ] failed to disc lose to his manager.”
Because of a potential conflict, M1 stated that he instructed the EEO Specialist ’s manager to
have an Official Discussion with the EEO Specialist regarding his obligation to “report any
potential conflicts of interest that may aris e as a result of being assigned an informal complaint
for an employee that he has a friendship with.” As a result, M1 explained that he determined that
the EEO Specialist would no longer be assigned as the ADR Specialist on any further informal
complaints filed by Complainant.
The record includes copies of text messages sent between Complainant and the EEO Specialist. The text messages include “ headshot ” pictures of Complainant and one headshot picture the
EEO Specialist sent to Complainant in January 2016. The text messages indicate that
Complainant initiated the majority of the text messages a nd she voluntary sent pictures to the
EEO Specialist. In March 2015, Complainant requested an attorney’s contact information and attached a selfie to her mes sage. The EEO Specialist responded by providing the requested information, inquired
about Complainant’s injury, and commented, “U take some very nice pictures. Why do u always look down.” Complainant then responded by texting the EEO Specialist another selfie and stated, “this one is front facing now send me some.” The record further indicates that the EEO Specialist wished Complainant a happy Easter and a happy Mother’s Day in April and May 2015. Complainant thanked the EEO Specialist for both message s and sent a selfie in response
to the EEO Specialist’s Mother’s Day text . In June 2015, Complainant sent the EEO Specialist a
selfie and informed him that she was at the District Office and the EEO Specialist responded by
stating that he was at a conference in Washington, DC but would call her later. In December
2015, the EEO Specialist stated, “hello nice to see you. I thought you were going to hang around and talk.” Complainant responded with a selfie and stated, “Did not know what ur plans we re.
So I went back to work. Call me sometime” and the EEO Specialist responded “Love the pic.” In January 2016, the EEO Specialist sent Complainant a selfie of himself taken at his office. In February 2016, Complainant sent the EEO Specialist a selfie wis hing him a happy Valentine’s
Day to which the EEO Specialist responded, “Thank u. Same to u. U look very lovely.” On
March 21, 2016 and April 16, 2016, Complainant sent the EEO Specialist text messages at midnight and 11:22 pm and inquired whether he was awake.
The record also includes a screenshot of a Facebook friend request from Complainant to the EEO Specialist. We acknowledge that the EEO Specialist denied asking Complainant to call him, to visit him at
work, or to send him pictures. We further acknowledge that the EEO Specialist denied having an erection when he hugged Complainant. This testimony directly conflicts with the statements provided by Complainant . Here, however, Complainant effectively waived h er right to have this
matter considered before an EEOC AJ when she failed to respond to a notice informing her of a
right to request a hearing. If Complainant had responded and requested a hearing , then the AJ
may have developed the record more through discovery and cross -examination of witne ss.
Moreover, we lack the possible benefits of an EEOC AJ’s credibility determinations. We are left
with the EEO Specialist’s version of events and that of Complainant which are completely at
odds. As such, the evidence of record was at best, in equipoise. See Complainant v. Dep't of
Health and Human Servs. , EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't
of Homeland Sec. , EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric. ,
EEOC Appeal No. 0120102187 (Aug. 23, 2012) .
However, even if true as alleged, Complainant has failed to demonstrate that these incidents subjected h er to discriminatory sexual harassment. Copies of the tex t messages exchanged
between Complainant and the EEO Specialist indicate that most of these conversations were initiated by Complainant, the conversations were not sexually suggestive, and Complainant voluntarily sent selfies of herself to the EEO Speciali st. The record supports a determination that
Complainant continued to text the EEO Specialist about nonwork- related matters after he
allegedly hugged her and pressed his erection on her. Although the EEO Specialist denied
having an erection during this hug, this incident, even if true, is an isolated one. We have held
that claims of isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep ’t of Veterans Affairs
, EEOC Request No. 05960030 (July
12, 1996); Banks v. Health and Human Services , EEOC Request No. 05940481 (Feb. 16, 1995).
Further, Complainant has not shown that his term or condition of employment was adversely
affected by these isolated incidents. Therefore, Comp lainant has failed to establish that the
Agency subjected her to discriminatory sexual harassment.
Because we have discussed all claims on the merits, we need not address the Agency’s
alternative dismissal of claim 1 on procedural grounds.
We AFFIRM the Agency’s final decision because the preponderance of the evidence of record
does not establish that discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 thir ty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employm ent Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD -110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant ’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is rec eived by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The req uest 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).
COMPLAINA NT’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 (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
August 13, 2019
Date | [
"Hernandez v. Department of Transportation , EEOC Request No. 05900159 (June 28, 1990)",
"Peterson v. Department of Health and Human Services , EEOC Request No. 05900467 (June 8, 1990)",
"Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998)",
"Complainant v. Dep't of Health and Human Servs.... | [
-0.08850767463445663,
0.09293785691261292,
0.016787901520729065,
0.034985434263944626,
-0.0056043523363769054,
-0.02120746113359928,
0.04882138967514038,
-0.05521349981427193,
-0.05176425352692604,
0.0037706310395151377,
0.04280582442879677,
-0.030427809804677963,
-0.01638021133840084,
-0.... |
2 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120142833.txt | 0120142833.txt | TXT | text/plain | 11,580 | July 3, 2014 | Appeal Number: 0120142833
Background:
At the time of events giving rise to this complaint, Complainant worked in "payroll1" at the Agency's Financial Management facility in Norfolk, Virginia. On June 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), color (White), and age (60 years at time of incident) when:
1. On or about March 11, 2014, Complainant discovered she had not been selected for a Financial Management Analyst GS-0501-07/09, position.
The Agency dismissed the claim for untimely EEO Counselor contact.
Legal Analysis:
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record shows, however, that DM notified Complainant of the relevant time limit and warned her that should she subsequently decide to pursue the EEO process, the 45-day time limit still applied. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. | Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120142833
Agency No. 144008502092
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated July 3, 2014, 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 in "payroll1" at the Agency's Financial Management facility in Norfolk, Virginia. On June 25, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), color (White), and age (60 years at time of incident) when:
1. On or about March 11, 2014, Complainant discovered she had not been selected for a Financial Management Analyst GS-0501-07/09, position.
The Agency dismissed the claim for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
EEOOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Complainant contends that she learned that she had not been selected for the position on March 11, 2014. The record includes an internal email revealing that Complainant contacted the EEO Counselor's office on that date. The email states that Complainant "has contacted the EEO office interested in participating in workplace dispute Alternative Dispute Resolution (ADR). Issues raised: Non selection for the position of Financial Management Analyst) GS-0501-07/9. Resolution: Wants to know why she did not meet the qualifications to be selected for the position." The email did not indicate that Complainant intended to initiate the EEO complaint process.
The record on appeal contains an unsworn statement from the Deputy EEO Manager (DM) who maintained that when she met with Complainant "on or about March 10, 2014," Complainant:
and I discussed non-EEO ADR workplace dispute [sic] vs. EEO ADR mediations on or about 10 March 2014. Specifically, I discussed non-EEO ADR workplace dispute with [Complainant], because after going over the EEO process (discrimination bases and types) with her, she did not indicate she felt she was discriminated based on the discrimination types provided to her. I further advised [Complainant] that our meeting and conversation on 10 March 2014 served strictly as advisory on the EEO process and did not serve as official EEO Contact. [Complainant] advised [Agency officials that] she wished to participate in non-EEO ADR Workplace Dispute Mediation.
Agency Appeal Brief.
DM further maintains that a few days later Complainant changed her mind and notified her office that she had decided to pursue the EEO process and that the EEO Counselor's office then provided Complainant "with the necessary EEO Contact forms for completion and submission to confirm her EEO Contact." A few days later, according to DM, Complainant again had a change of heart. Specifically, according to DM:
On 17 March 2014, [Complainant] contacted me by email and stated, 'After talking this over completely with a union rep, I've decided to go with the mediation. Either the 2nd or 3rd of April will be okay,' On 17 March 2014, I emailed [Complainant] and requested she clarify whether she was referring to non-EEO ADR or EEO related ADR mediation in her email of 17 March 2014. [Complainant] replied and stated, 'Yes, I wish to pursue non-EEO ADR Mediation.' In response, I advised [Complainant] by email on 18 March 2014 that based on her email, my office would be working to now set up non-EEO ADR mediation and I further advised her that the timelines for EEO still apply in the event she decided once again to go the EEO route. On 18 March 2014, I once again advised [Complainant] that an employee must make EEO contact within 45 days of the alleged discrimination. Based on [Complainant's] election, my office scheduled a non-EEO ADR Mediation that was held on 24 April 2014. On or about 5 May 2014, [Complainant] contacted me and stated, 'Having a bad result with my mediation, I would like to resubmit my complaint with the EEOC, for an age, race and favoritism discrimination action." I advised [Complainant] by email on 5 May 2014 of the EEO Contact phone number to make official EEO contact. On 5 May 2014, [Complainant] made official EEO contact my office and confirmed her intent to participate in the official EEO process.
The record confirms DM's version of events, specifically we note the record contains a copy of a series of emails between Complainant and DM wherein Complainant states, on March 17, 2014, that "[a]fter talking it over with a union rep, I've decided to go with the mediation." DM then responds:
To ensure we are clear. When you say, you want mediation. I need you to confirm that you wish to pursue non-EEO ADR Mediation. If you recall you initially stated you wished to pursue non-EEO ADR Mediation, because you did not feel your issue related to an EEO discrimination type. Later, you indicated that you spoke with your representative and feel that your issue was related to an EEO discrimination type. I need you to confirm that you understand if mediation is set up, it would be based on a non-EEO ADR Mediation vice [sic] EEO related issue. Please confirm and I will proceed based on your confirmation.
Complainant then responds, "yes, I wish to pursue non-EEO ADR mediation" to which DM responds, "Based on your email, I will being working the non-EEO ADR Mediation. However, please know that timelines for EEO still apply in the event you decide once again to go the EEO route. An employee must make EEO contact within 45 days of the alleged discrimination."
The record thus shows that Complainant abandoned any initial efforts she may have made to initiate the EEO process on March 17, 2014 and she did not re-initiate her EEO contact until May 5, 2014, which is beyond the the forty-five (45) day limitation period for a nonselection that Complainant learned about on March 11, 2014.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record shows, however, that DM notified Complainant of the relevant time limit and warned her that should she subsequently decide to pursue the EEO process, the 45-day time limit still applied. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
The Dismissal is AFFIRMED.
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
January 30, 2015
__________________
Date
1 The exact title of Complainant's position is unknown. The EEO Counselor's report contains an entry entitled "Complainant's position" and next to it the word "General Ledger" has been crossed out and the word "payroll" has been written in by hand.
------------------------------------------------------------
------------------------------------------------------------
| [
"29 C.F.R. § 1614.105(a)",
"29 C.F.R. § 1614.405",
"29 C.F.R. § 1614.604",
"29 C.F.R. § 1614.604(c)",
"42 U.S.C. § 2000e",
"29 U.S.C. § 621",
"29 U.S.C. §§ 791"
] | [
-0.04759514331817627,
0.07785467803478241,
-0.06848490238189697,
0.07572562247514725,
0.002960938261821866,
0.08485255390405655,
0.0043422020971775055,
-0.0474136620759964,
-0.03668230026960373,
0.03304900974035263,
0.000792686187196523,
-0.05607454106211662,
0.03452787175774574,
-0.003633... | |
3 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120073324.txt | 0120073324.txt | TXT | text/plain | 26,381 | Reese, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency. | July 12, 2007 | Appeal Number: 0120073324
Background:
At the time of events giving rise to this complaint, complainant
worked as a nurse recruiter at the agency's Medical Center in Los
Angeles, California. Complainant has a Bachelor of Science degree
in nursing, law degree, and master's degree in mental health nursing.
Complainant also has previous experience as an EEO investigator, certified
mediator/arbitrator, and final decision writer.
On February 1, 2006, the agency advertised for the position of EEO
Manager, GS-12/13 in the Office of the Director in West Los Angeles,
California. According to the position description, the EEO Program
Manager manages the medical center EEO program and is responsible for
program development, administration, evaluation, and advisory functions.
Complainant submitted an application for the position and was deemed
qualified by the agency, but complainant was not selected for the
position.
On May 26, 2006, the agency advertised for four GS-12/13 Technical
Writer positions. According to the position description, a Technical
Writer serves as a consultant to the Director of Human Resources; acts
as writer-editor in the analysis and evaluation of EEO claims and other
labor cases; conducts legal research required for dispositive motions;
represents the agency at hearings; and, consults with management
regarding legal actions. Complainant applied for a Technical Writer
position on May 31, 2006, and was deemed qualified for the position by
the agency. However, the agency did not select complainant for the
position and selected three GS-12 Technical Writers who worked in the
Human Resources department for promotion to the position pursuant to
the vacancy announcement.
On December 20, 2006, complainant filed an EEO complaint alleging
that she was discriminated against in reprisal for prior protected EEO
activity under Title VII when on June 15, 2006 and September 29, 2006,
she was notified that management failed to select her for the positions
of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP).
In an investigative affidavit, the Director for the Greater Los Angeles
Healthcare Center stated that he was the selecting official for the
EEO Program Manager position and was not aware of complainant's prior
EEO activity at the time he made the selection. He stated that he also
served on the selection panel for the position, along with the Assistant
Regional Counsel (Counsel), Chief of Human Resources, and the Acting
EEO Program Manager. He stated that the panelists developed interview
questions, interviewed the candidates, and individually rated and scored
each candidate. He stated that there were approximately seven or eight
candidates for the position, but only four candidates with the top
scores were invited to have a second interview for the position with
the panelists and senior EEO management.
The Director stated that although complainant was qualified for the
position, she was not invited to a second round of interviews because she
did not demonstrate much knowledge or experience in managing EEO programs
and did not have the equivalent work experience of the candidate that
was selected. He stated that complainant's interview performance was "not
the strongest" because she "failed all the questions" and was unable to
articulate her knowledge and skills in EEO program management. Exhibit
B2, p. 7. He stated that at the end of the interview, complainant
did not have any questions to ask the panelists, which made him think
that she had not thought much about the position. He stated that based
upon the first round of interviews, the panelists achieved a consensus
opinion that complainant was not qualified enough for a second interview.
He stated that after the second round of interviews, the panelists agreed
that the selectee was the best applicant for the position.
The Chief of Human Resources (Chief) stated that he was not aware
of complainant's prior EEO activity at the time of the selections.
He stated that after the applicants for the EEO Program Manager position
were interviewed, the panelists ranked the candidates and referred the
top three candidates to the Director. He stated that complainant was
not referred to the Director because she did not perform well in the
interview, especially with regard to her responses to questions about her
leadership abilities. He further stated that the selectee was already
in a GS-14 or GS-15 position, had experience as a civil rights attorney,
and had a master's degree in Health Administration.
Counsel testified that at the time of the selection, she was not aware
of complainant's previous EEO activity. She stated that the selectee
was chosen for the position because she was the most qualified candidate,
was very bright, communicative, and had identical experience at a larger
agency in a more complex position at a higher grade. She stated that
during the interview, complainant displayed a "flip" attitude throughout
the interview and seemed to be a "little sarcastic." Exhibit B3,
p. 11.
The Acting EEO Program Manager stated that at the time of the
non-selections, he was aware that complainant had two or three pending
EEO complaints. He stated that the panelists asked each candidate the
same six questions during the interviews. He stated that complainant
was not referred to the second round of interviews with the Director
because although she answered the interview questions "reasonably,"
she did not have experience as an affirmative employment officer,
diversity coordinator, or EEO advisor to the director. He stated
that the top candidates demonstrated that they not only knew what the
position entailed, but also showed what they would do with respect to
diversity, affirmative action, and outreach, which are 90 percent of
the job. He stated that the selectee was chosen for the EEO Program
Manager position because she had experience in affirmative action,
diversity, and outreach and was an EEO manager, Alternative Dispute
Resolution coordinator, and manager of a complaint processing unit,
whereas complainant did not have this experience.
Regarding the Technical Writer position, the Chief stated that five
candidates applied for the position, including complainant. He stated
that the applicants were referred to General Counsel because Technical
Writers work for General Counsel, and General Counsel chose its preferred
candidates, who were already on staff as Technical Writers. He stated
that the Counsel decided to only fill three Technical Writer positions
because "there really wasn't any room or budget money" for a fourth
Technical Writer. Exhibit B4, p. 14.
Counsel stated that there were no interviews for three Technical Writer
positions. She stated that although she was part of the selection process
for the positions, she was not the selecting official and did not sign the
certification for the position. Counsel stated that she recommended the
top three applicants based on the order of the names on the certificate
of eligible candidates, but Human Resources made the final decision.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that complainant
established a prima facie case of reprisal with respect to the EEO
Program Manager position because the Acting EEO Program Manager knew
about her previous EEO activity, but complainant failed to prove that the
agency's explanations for not selecting her were pretext for reprisal.
With respect to the Technical Writing position, the agency determined
that complainant failed to establish a case of reprisal for this matter
because the selecting officials for this position were not aware of
complainant's previous EEO activity.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
reprisal. Complainant contends that the Director, Chief, and Counsel
should have known about her previous EEO activity which resulted in a
settlement agreement on May 2, 2006, because agency policy states that
settlement agreements drafted by the EEO Office will be reviewed by the
Director of Human Resources, Regional Counsel, and the appropriate
Executive Leader prior to submission to the Executive Director.
Complainant further contends that the Director should have known about
the previous EEO activity because the Director is normally informed by
the EEO Manager of all formal EEO complaints filed against the agency.
With respect to the EEO Manager position, complainant argues that the
agency failed to provide ranking/rating sheets and or notes for the
record that indicated how applicants were selected to proceed to the
second round of interviews for the position. Regarding the Technical
Writer position, complainant argues that the agency retaliated against
her because although there were four Technical Writer vacancies, the
agency only filled three of the vacancies. The agency contends that its
final decision should be affirmed because all but one of the management
officials involved in the selection processes did not have knowledge of
complainant's prior EEO activity at the time of the non-selections.
Legal Analysis:
the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
1. Whether an adverse inference should be drawn against the agency because
it failed to provide requested documentation to the EEO investigator
regarding complainant's non-selection for the position of EEO Program
Manager.
2. Whether the agency properly found that it did not subject complainant
to reprisal for prior EEO activity when it failed to select her for two
positions because complainant failed to prove that management officials
knew about her previous EEO activity when she was not selected for a
Technical Writer position, and complainant did not rebut the agency's
non-discriminatory explanations for not selecting her for the EEO Program
Manager position.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a nurse recruiter at the agency's Medical Center in Los
Angeles, California. Complainant has a Bachelor of Science degree
in nursing, law degree, and master's degree in mental health nursing.
Complainant also has previous experience as an EEO investigator, certified
mediator/arbitrator, and final decision writer.
On February 1, 2006, the agency advertised for the position of EEO
Manager, GS-12/13 in the Office of the Director in West Los Angeles,
California. According to the position description, the EEO Program
Manager manages the medical center EEO program and is responsible for
program development, administration, evaluation, and advisory functions.
Complainant submitted an application for the position and was deemed
qualified by the agency, but complainant was not selected for the
position.
On May 26, 2006, the agency advertised for four GS-12/13 Technical
Writer positions. According to the position description, a Technical
Writer serves as a consultant to the Director of Human Resources; acts
as writer-editor in the analysis and evaluation of EEO claims and other
labor cases; conducts legal research required for dispositive motions;
represents the agency at hearings; and, consults with management
regarding legal actions. Complainant applied for a Technical Writer
position on May 31, 2006, and was deemed qualified for the position by
the agency. However, the agency did not select complainant for the
position and selected three GS-12 Technical Writers who worked in the
Human Resources department for promotion to the position pursuant to
the vacancy announcement.
On December 20, 2006, complainant filed an EEO complaint alleging
that she was discriminated against in reprisal for prior protected EEO
activity under Title VII when on June 15, 2006 and September 29, 2006,
she was notified that management failed to select her for the positions
of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP).
In an investigative affidavit, the Director for the Greater Los Angeles
Healthcare Center stated that he was the selecting official for the
EEO Program Manager position and was not aware of complainant's prior
EEO activity at the time he made the selection. He stated that he also
served on the selection panel for the position, along with the Assistant
Regional Counsel (Counsel), Chief of Human Resources, and the Acting
EEO Program Manager. He stated that the panelists developed interview
questions, interviewed the candidates, and individually rated and scored
each candidate. He stated that there were approximately seven or eight
candidates for the position, but only four candidates with the top
scores were invited to have a second interview for the position with
the panelists and senior EEO management.
The Director stated that although complainant was qualified for the
position, she was not invited to a second round of interviews because she
did not demonstrate much knowledge or experience in managing EEO programs
and did not have the equivalent work experience of the candidate that
was selected. He stated that complainant's interview performance was "not
the strongest" because she "failed all the questions" and was unable to
articulate her knowledge and skills in EEO program management. Exhibit
B2, p. 7. He stated that at the end of the interview, complainant
did not have any questions to ask the panelists, which made him think
that she had not thought much about the position. He stated that based
upon the first round of interviews, the panelists achieved a consensus
opinion that complainant was not qualified enough for a second interview.
He stated that after the second round of interviews, the panelists agreed
that the selectee was the best applicant for the position.
The Chief of Human Resources (Chief) stated that he was not aware
of complainant's prior EEO activity at the time of the selections.
He stated that after the applicants for the EEO Program Manager position
were interviewed, the panelists ranked the candidates and referred the
top three candidates to the Director. He stated that complainant was
not referred to the Director because she did not perform well in the
interview, especially with regard to her responses to questions about her
leadership abilities. He further stated that the selectee was already
in a GS-14 or GS-15 position, had experience as a civil rights attorney,
and had a master's degree in Health Administration.
Counsel testified that at the time of the selection, she was not aware
of complainant's previous EEO activity. She stated that the selectee
was chosen for the position because she was the most qualified candidate,
was very bright, communicative, and had identical experience at a larger
agency in a more complex position at a higher grade. She stated that
during the interview, complainant displayed a "flip" attitude throughout
the interview and seemed to be a "little sarcastic." Exhibit B3,
p. 11.
The Acting EEO Program Manager stated that at the time of the
non-selections, he was aware that complainant had two or three pending
EEO complaints. He stated that the panelists asked each candidate the
same six questions during the interviews. He stated that complainant
was not referred to the second round of interviews with the Director
because although she answered the interview questions "reasonably,"
she did not have experience as an affirmative employment officer,
diversity coordinator, or EEO advisor to the director. He stated
that the top candidates demonstrated that they not only knew what the
position entailed, but also showed what they would do with respect to
diversity, affirmative action, and outreach, which are 90 percent of
the job. He stated that the selectee was chosen for the EEO Program
Manager position because she had experience in affirmative action,
diversity, and outreach and was an EEO manager, Alternative Dispute
Resolution coordinator, and manager of a complaint processing unit,
whereas complainant did not have this experience.
Regarding the Technical Writer position, the Chief stated that five
candidates applied for the position, including complainant. He stated
that the applicants were referred to General Counsel because Technical
Writers work for General Counsel, and General Counsel chose its preferred
candidates, who were already on staff as Technical Writers. He stated
that the Counsel decided to only fill three Technical Writer positions
because "there really wasn't any room or budget money" for a fourth
Technical Writer. Exhibit B4, p. 14.
Counsel stated that there were no interviews for three Technical Writer
positions. She stated that although she was part of the selection process
for the positions, she was not the selecting official and did not sign the
certification for the position. Counsel stated that she recommended the
top three applicants based on the order of the names on the certificate
of eligible candidates, but Human Resources made the final decision.
At the | Jacqueline F. Newbold-Reese,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120073324
Agency No. 200P-0691-2007100240
DECISION
On July 12, 2007, complainant filed an appeal from the agency's June 11,
2007 final decision concerning her equal employment opportunity (EEO)
complaint alleging 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. The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
ISSUES PRESENTED
1. Whether an adverse inference should be drawn against the agency because
it failed to provide requested documentation to the EEO investigator
regarding complainant's non-selection for the position of EEO Program
Manager.
2. Whether the agency properly found that it did not subject complainant
to reprisal for prior EEO activity when it failed to select her for two
positions because complainant failed to prove that management officials
knew about her previous EEO activity when she was not selected for a
Technical Writer position, and complainant did not rebut the agency's
non-discriminatory explanations for not selecting her for the EEO Program
Manager position.
BACKGROUND
At the time of events giving rise to this complaint, complainant
worked as a nurse recruiter at the agency's Medical Center in Los
Angeles, California. Complainant has a Bachelor of Science degree
in nursing, law degree, and master's degree in mental health nursing.
Complainant also has previous experience as an EEO investigator, certified
mediator/arbitrator, and final decision writer.
On February 1, 2006, the agency advertised for the position of EEO
Manager, GS-12/13 in the Office of the Director in West Los Angeles,
California. According to the position description, the EEO Program
Manager manages the medical center EEO program and is responsible for
program development, administration, evaluation, and advisory functions.
Complainant submitted an application for the position and was deemed
qualified by the agency, but complainant was not selected for the
position.
On May 26, 2006, the agency advertised for four GS-12/13 Technical
Writer positions. According to the position description, a Technical
Writer serves as a consultant to the Director of Human Resources; acts
as writer-editor in the analysis and evaluation of EEO claims and other
labor cases; conducts legal research required for dispositive motions;
represents the agency at hearings; and, consults with management
regarding legal actions. Complainant applied for a Technical Writer
position on May 31, 2006, and was deemed qualified for the position by
the agency. However, the agency did not select complainant for the
position and selected three GS-12 Technical Writers who worked in the
Human Resources department for promotion to the position pursuant to
the vacancy announcement.
On December 20, 2006, complainant filed an EEO complaint alleging
that she was discriminated against in reprisal for prior protected EEO
activity under Title VII when on June 15, 2006 and September 29, 2006,
she was notified that management failed to select her for the positions
of GS-13 EEO Program Manager and Technical Writer, 06-179 (KP).
In an investigative affidavit, the Director for the Greater Los Angeles
Healthcare Center stated that he was the selecting official for the
EEO Program Manager position and was not aware of complainant's prior
EEO activity at the time he made the selection. He stated that he also
served on the selection panel for the position, along with the Assistant
Regional Counsel (Counsel), Chief of Human Resources, and the Acting
EEO Program Manager. He stated that the panelists developed interview
questions, interviewed the candidates, and individually rated and scored
each candidate. He stated that there were approximately seven or eight
candidates for the position, but only four candidates with the top
scores were invited to have a second interview for the position with
the panelists and senior EEO management.
The Director stated that although complainant was qualified for the
position, she was not invited to a second round of interviews because she
did not demonstrate much knowledge or experience in managing EEO programs
and did not have the equivalent work experience of the candidate that
was selected. He stated that complainant's interview performance was "not
the strongest" because she "failed all the questions" and was unable to
articulate her knowledge and skills in EEO program management. Exhibit
B2, p. 7. He stated that at the end of the interview, complainant
did not have any questions to ask the panelists, which made him think
that she had not thought much about the position. He stated that based
upon the first round of interviews, the panelists achieved a consensus
opinion that complainant was not qualified enough for a second interview.
He stated that after the second round of interviews, the panelists agreed
that the selectee was the best applicant for the position.
The Chief of Human Resources (Chief) stated that he was not aware
of complainant's prior EEO activity at the time of the selections.
He stated that after the applicants for the EEO Program Manager position
were interviewed, the panelists ranked the candidates and referred the
top three candidates to the Director. He stated that complainant was
not referred to the Director because she did not perform well in the
interview, especially with regard to her responses to questions about her
leadership abilities. He further stated that the selectee was already
in a GS-14 or GS-15 position, had experience as a civil rights attorney,
and had a master's degree in Health Administration.
Counsel testified that at the time of the selection, she was not aware
of complainant's previous EEO activity. She stated that the selectee
was chosen for the position because she was the most qualified candidate,
was very bright, communicative, and had identical experience at a larger
agency in a more complex position at a higher grade. She stated that
during the interview, complainant displayed a "flip" attitude throughout
the interview and seemed to be a "little sarcastic." Exhibit B3,
p. 11.
The Acting EEO Program Manager stated that at the time of the
non-selections, he was aware that complainant had two or three pending
EEO complaints. He stated that the panelists asked each candidate the
same six questions during the interviews. He stated that complainant
was not referred to the second round of interviews with the Director
because although she answered the interview questions "reasonably,"
she did not have experience as an affirmative employment officer,
diversity coordinator, or EEO advisor to the director. He stated
that the top candidates demonstrated that they not only knew what the
position entailed, but also showed what they would do with respect to
diversity, affirmative action, and outreach, which are 90 percent of
the job. He stated that the selectee was chosen for the EEO Program
Manager position because she had experience in affirmative action,
diversity, and outreach and was an EEO manager, Alternative Dispute
Resolution coordinator, and manager of a complaint processing unit,
whereas complainant did not have this experience.
Regarding the Technical Writer position, the Chief stated that five
candidates applied for the position, including complainant. He stated
that the applicants were referred to General Counsel because Technical
Writers work for General Counsel, and General Counsel chose its preferred
candidates, who were already on staff as Technical Writers. He stated
that the Counsel decided to only fill three Technical Writer positions
because "there really wasn't any room or budget money" for a fourth
Technical Writer. Exhibit B4, p. 14.
Counsel stated that there were no interviews for three Technical Writer
positions. She stated that although she was part of the selection process
for the positions, she was not the selecting official and did not sign the
certification for the position. Counsel stated that she recommended the
top three applicants based on the order of the names on the certificate
of eligible candidates, but Human Resources made the final decision.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision pursuant
to 29 C.F.R. § 1614.110(b). The decision concluded that complainant
established a prima facie case of reprisal with respect to the EEO
Program Manager position because the Acting EEO Program Manager knew
about her previous EEO activity, but complainant failed to prove that the
agency's explanations for not selecting her were pretext for reprisal.
With respect to the Technical Writing position, the agency determined
that complainant failed to establish a case of reprisal for this matter
because the selecting officials for this position were not aware of
complainant's previous EEO activity.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency improperly found no
reprisal. Complainant contends that the Director, Chief, and Counsel
should have known about her previous EEO activity which resulted in a
settlement agreement on May 2, 2006, because agency policy states that
settlement agreements drafted by the EEO Office will be reviewed by the
Director of Human Resources, Regional Counsel, and the appropriate
Executive Leader prior to submission to the Executive Director.
Complainant further contends that the Director should have known about
the previous EEO activity because the Director is normally informed by
the EEO Manager of all formal EEO complaints filed against the agency.
With respect to the EEO Manager position, complainant argues that the
agency failed to provide ranking/rating sheets and or notes for the
record that indicated how applicants were selected to proceed to the
second round of interviews for the position. Regarding the Technical
Writer position, complainant argues that the agency retaliated against
her because although there were four Technical Writer vacancies, the
agency only filled three of the vacancies. The agency contends that its
final decision should be affirmed because all but one of the management
officials involved in the selection processes did not have knowledge of
complainant's prior EEO activity at the time of the non-selections.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant
to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo
review by the Commission. 29 C.F.R. § 1614.405(a). See EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (explaining that
the de novo standard of review "requires that the Commission examine
the record without regard to the factual and legal determinations of the
previous decision maker," and that EEOC "review the documents, statements,
and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission's
own assessment of the record and its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14.
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met
its burden, the complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the agency acted
on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks,
509 U.S. 502 (1993).
EEO Program Manager
In this case, complainant applied for and is qualified for an EEO
Program Manager position, but the agency did not select her for the
position. Complainant previously engaged in EEO activity on February 10,
2006, when she filed an informal EEO complaint in which she alleged that
the Director for the Greater Los Angeles Healthcare Center discriminated
against her on the basis of race and age, which resulted in a settlement
agreement dated May 2, 2006. Complainant was notified that she was not
selected for the position slightly over one month after she entered into
the settlement agreement, which we determine creates a nexus between her
previous EEO activity and her non-selection. Further, although three
of the four selection panelists maintained that they did not know about
complainant's previous EEO activity at the time of the non-selection,
the Acting EEO Program Manager stated that he was aware of complainant's
previous EEO activity. Thus, we find that complainant established a prima
facie of reprisal case for the EEO Program Manager non-selection.
Nonetheless, we also determine that the agency provided legitimate,
non-discriminatory reasons for not selecting complainant. Specifically,
management stated that it did not select complainant for the EEO
Program Manager position because the selectee had previous experience
in affirmative action, outreach, and managing an EEO program, whereas
complainant did not have such experience. Management further stated
that complainant did not articulate her knowledge and skills in EEO
program management during the interview.
Although management officials provided investigative statements in which
they recounted the selection process and explained why complainant was not
selected for a second round interview, we note that the agency did not
provide any copies of the interview notes or rating/evaluation sheets.
Moreover, the agency provided the application of the selectee for the
record, but did not provide the applications of the other three applicants
who were selected to compete at the second round of interviews.
The record reveals that on February 15, 2007, the EEO investigator
asked the agency to produce documentation reflecting how it evaluated
the candidates for the EEO Program Manager position, including interview
notes and any other documentation reflecting the reasons for selecting
the candidate. In a memorandum dated March 5, 2007, Human Resources
informed EEO officials that the interview notes and evaluation sheets for
the EEO Program Manager position "were not preserved," and the record does
not contain the requested documentation. Exhibit A3b, p. 1. We note
that EEOC Regulation 29 C.F.R. § 1602.14 provides that agencies must
preserve any records pertaining to selections and promotions for a period
of one year from the date of the making of the record or the personnel
action, whichever comes later. Moreover, the regulation requires that
once the complaint process is initiated, the agency is required to
retain personnel records until a final disposition of the complaint.
Because the agency has failed to comply with 29 C.F.R. § 1602.14,
we take an adverse inference against the agency and find that had the
missing records been preserved, they would have shown that the agency's
explanations for why complainant was not granted a second interview
were not credible. See Cosentine v. Department of Homeland Security,
EEOC Appeal No. 07A40114 (August 9, 2006)(citing Hale v. Department of
Justice, EEOC Appeal No. 01A03341 (December 8, 2000)).
Nevertheless, even with this adverse inference, the evidence of
record does not establish that complainant was not selected because
of reprisal.1 The record contains a copy of complainant's and the
selectee's applications. At the time of the selection, the selectee was
a GS-14/15 equivalent Equal Employment Specialist Team Leader with Office
of Comptroller of the Currency. In that position, she managed the EEO
pre-complaint and formal process and Fair Alternatives and Innovative
Resolutions program; analyzed EEO complaint reports for the EEO Director;
reviewed EEO investigative files; briefed Senior Deputy Comptrollers and
other executives on EEO cases; drafted policies and procedures governing
alternative dispute resolution; conducted training for EEO counselors and
mediators; and, trained employees on the EEO process. Additionally, the
selectee also worked as the Director of Compliance and Equal Employment
Specialist at United States Customs and Border Protection and Human
Resources System Design Team Member at the Department of Homeland
Security. In these positions, the selectee implemented EEO policies,
analyzed EEO demographics for Affirmative Employment Plans, managed a
National Disability Program, wrote articles on EEO issues, and approved
special emphasis and outreach programs. The selectee has law and Master
of Public Administration degrees.
According to complainant's application, she has experience as a certified
mediator, arbitrator, Civil Service Commission Hearing Officer, EEO
investigator, adjunct professor, conflict management trainer, and final
agency decision writer. We find that the selectee possessed plainly
superior qualifications for the EEO Program Manager position, in light of
her extensive experience and expertise in a broad swath of federal sector
EEO fields, including EEO management, alternative dispute resolution,
EEO training, Management Directive 715 reports, Affirmative Employment
Plans, and special emphasis and outreach programs. While complainant had
experience in mediation, investigations, and final decision writing at
the time of the non-selection, she clearly did not have the broad EEO
or management experience that the selectee possessed for the position.
Consequently, we find that despite the adverse inference that the
agency's explanations are unworthy of belief, we find no persuasive
evidence of reprisal here because the selectee's qualifications for
the EEO Program Manager position are plainly superior to complainant's
qualifications.2 As such, we find no persuasive evidence that the
agency did not select her because of reprisal. See Carey Weathersy
v. Department of the Interior, EEOC Appeal No. 0120061627 (August 16,
2007) (Commission found no discrimination where, even with an adverse
inference for failure to preserve records from the selection process, the
record does not establish that complainant would have been chosen over
the selectee for the position). Thus, we find that the record in this
case does not establish that the agency retaliated against complainant
when it failed to select her for the EEO Program Manager position.
Technical Writer
Complainant applied for a Technical Writer position, and the agency deemed
her qualified for the position. However, the selecting officials asserted
that they were not aware of complainant's prior EEO activity when they
made the selection for this position. Complainant maintains that the
selecting officials should have been aware of her prior EEO activity
because agency policy states that all settlement agreements must be
reviewed by the Director of Human Resources and Regional Counsel before
being submitted to the Executive Director, and a copy of the executed
agreement must be sent to both agency officials. However, while agency
policy and procedure may indicate that both agency officials should have
known about complainant's previous EEO activity because of their jobs,
complainant failed to show that the selecting officials actually knew that
she previously engaged in EEO activity when they made their selections.
Consequently, we find that complainant failed to establish a prima facie
case of reprisal for this claim.
CONCLUSION
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that reprisal occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 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 (S0408)
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 (Z1008)
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
_____11/17/09_____________
Date
1 In Hicks, the Supreme Court held that a fact finder is not required,
as a matter of law, to find discrimination whenever it finds that
an employer's explanation for its actions is not credible. Id. at
519. The Court, however, made clear that a fact finder might find
discrimination in such circumstances. Id. at 524. The critical factor
is that a fact finder must be persuaded by the complainant that it was
discrimination that motivated the employer to act as it did. Id.
2 In fact, on appeal, complainant acknowledges that she never asserted
that her qualifications were plainly superior to the selectees'
qualifications. Complainant does not argue that selectee would not have
been referred to the second round of interviews.
??
??
??
??
| [
"Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6, 1996)",
"Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997)",
"Carey Weathersy v. Department of the Interior, EEOC Appeal No. 0120061627 (August 16, 2007)",
"411 U.S. 792",
"438 U.S. 567",
"545 F.2d... | [
-0.10920216888189316,
0.0549066960811615,
0.04095671698451042,
0.014797156676650047,
0.02606896497309208,
0.014197753742337227,
0.017335038632154465,
0.017627878114581108,
0.005216845776885748,
0.062093585729599,
0.03297081217169762,
-0.05778960883617401,
-0.030576976016163826,
-0.05214820... |
4 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01981759.txt | 01981759.txt | TXT | text/plain | 11,007 | December 3, 1998 | Appeal Number: 01981759
Case Facts:
Appellant filed the instant appeal from the agency's December 3, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor.
Legal Analysis:
EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory.
The complaint concerns the allegedly discriminatory behavior by
appellant's supervisor on February 5, 1997. The agency found that
appellant initially contacted an EEO Counselor on April 7, 1997. The EEO
Counselor's report states that appellant initially contacted an EEO
Counselor on April 7, 1997.
On appeal appellant states in an affidavit that she contacted EEO
Counselor A in February 1997. Appellant claims that EEO Counselor A
informed appellant that there were no EEO Counselors available that day
and that appellant would be called by the EEO Office when an EEO counselor
was available. Appellant claims that when she contacted EEO Counselor
A in February 1997, EEO Counselor made a "notation" of that contact.
Appellant states that because she was not subsequently contacted by the
EEO Office, she recontacted the EEO Office and was eventually assigned
an EEO Counselor.
Appellant states that EEO Counselor B (the EEO Counselor who signed the
EEO Counselor's report) spoke with EEO Counselor A and "her supervisor"
and confirmed that appellant had been in the EEO Office in February
1997 and that EEO Counselor A had a record of the February 1997 contact.
Appellant also has submitted a copy of an Initial Interview form which
indicates that appellant contacted the EEO Office in February 1997 but
that an EEO Counselor was unavailable. The agency has supplied a copy
of what appears to be that same Initial Interview form with further
writing on the form. The agency's copy has an asterisk (*) next to the
February 1997 date. Below the February 1997 date in the agency's copy
of the form is the following writing: "*EEO Records reflect 7 Apr 97."
The agency has not supplied affidavits from EEO Counselor A or EEO
Counselor B addressing whether appellant contacted the EEO Office
in February 1997 and the nature of that contact. The agency has not
supplied an affidavit from the appropriate agency official addressing
who wrote the February 1997 contact date on the Initial Interview form.
Finally, the agency has not indicated that it has examined the logs of
the EEO Office or the notes of EEO Counselor A to determine if appellant
contacted the EEO Office in February 1997. The Commission finds that
the agency has not conducted an adequate investigation to determine
whether the instant allegation was timely raised with an EEO Counselor.
The Commission shall remand the matter so the agency can place into the
record more evidence addressing the issue of whether appellant timely
contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. An affidavit from EEO Counselor A addressing whether appellant
attempted to contact an EEO Counselor in February 1997.
2. An affidavit from EEO Counselor B addressing whether in conversations
with EEO Counselor A, EEO Counselor A stated that appellant attempted
to contact an EEO Counselor in February 1997.
3. All relevant EEO Office logs in February 1997 and notations from EEO
Counselor A indicating whether appellant contacted the EEO Office in
February 1997.
4. An affidavit from the appropriate agency official explaining who
wrote the date of February 1997 on the Initial Interview form.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision to appellant dismissing the
complaint. A copy of the letter accepting the complaint or a copy of
the new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410. | Tommie L. Jackson v. Department of the Army
01981759
December 3, 1998
Tommie L. Jackson, )
Appellant, )
)
v. ) Appeal No. 01981759
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
_________________________________)
DECISION
Appellant filed the instant appeal from the agency's December 3, 1997
decision dismissing appellant's complaint for failure to timely contact
an EEO Counselor. EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides
that an aggrieved person must contact an EEO Counselor within 45 days
of the matter alleged to be discriminatory.
The complaint concerns the allegedly discriminatory behavior by
appellant's supervisor on February 5, 1997. The agency found that
appellant initially contacted an EEO Counselor on April 7, 1997. The EEO
Counselor's report states that appellant initially contacted an EEO
Counselor on April 7, 1997.
On appeal appellant states in an affidavit that she contacted EEO
Counselor A in February 1997. Appellant claims that EEO Counselor A
informed appellant that there were no EEO Counselors available that day
and that appellant would be called by the EEO Office when an EEO counselor
was available. Appellant claims that when she contacted EEO Counselor
A in February 1997, EEO Counselor made a "notation" of that contact.
Appellant states that because she was not subsequently contacted by the
EEO Office, she recontacted the EEO Office and was eventually assigned
an EEO Counselor.
Appellant states that EEO Counselor B (the EEO Counselor who signed the
EEO Counselor's report) spoke with EEO Counselor A and "her supervisor"
and confirmed that appellant had been in the EEO Office in February
1997 and that EEO Counselor A had a record of the February 1997 contact.
Appellant also has submitted a copy of an Initial Interview form which
indicates that appellant contacted the EEO Office in February 1997 but
that an EEO Counselor was unavailable. The agency has supplied a copy
of what appears to be that same Initial Interview form with further
writing on the form. The agency's copy has an asterisk (*) next to the
February 1997 date. Below the February 1997 date in the agency's copy
of the form is the following writing: "*EEO Records reflect 7 Apr 97."
The agency has not supplied affidavits from EEO Counselor A or EEO
Counselor B addressing whether appellant contacted the EEO Office
in February 1997 and the nature of that contact. The agency has not
supplied an affidavit from the appropriate agency official addressing
who wrote the February 1997 contact date on the Initial Interview form.
Finally, the agency has not indicated that it has examined the logs of
the EEO Office or the notes of EEO Counselor A to determine if appellant
contacted the EEO Office in February 1997. The Commission finds that
the agency has not conducted an adequate investigation to determine
whether the instant allegation was timely raised with an EEO Counselor.
The Commission shall remand the matter so the agency can place into the
record more evidence addressing the issue of whether appellant timely
contacted an EEO Counselor.
The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall supplement the record with:
1. An affidavit from EEO Counselor A addressing whether appellant
attempted to contact an EEO Counselor in February 1997.
2. An affidavit from EEO Counselor B addressing whether in conversations
with EEO Counselor A, EEO Counselor A stated that appellant attempted
to contact an EEO Counselor in February 1997.
3. All relevant EEO Office logs in February 1997 and notations from EEO
Counselor A indicating whether appellant contacted the EEO Office in
February 1997.
4. An affidavit from the appropriate agency official explaining who
wrote the date of February 1997 on the Initial Interview form.
The agency shall redetermine whether appellant timely contacted an EEO
Counselor. Within 30 days of the date this decision becomes final the
agency shall either issue a letter to appellant accepting the complaint
for investigation or issue a new decision to appellant dismissing the
complaint. A copy of the letter accepting the complaint or a copy of
the new decision dismissing the complaint must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. §1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. §§ 1614.408 and 1614.409. 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© (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. §1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
December 3, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations | [] | [
-0.1543222963809967,
0.07610446959733963,
0.01839848980307579,
-0.02248232625424862,
0.07240220904350281,
-0.02359386533498764,
0.05783296003937721,
0.07085220515727997,
-0.03454555198550224,
0.052340902388095856,
0.06753083318471909,
-0.055009517818689346,
-0.02971651218831539,
0.01727572... | |
5 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/0120170901.txt | 0120170901.txt | TXT | text/plain | 15,647 | Kimbery H.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency. | December 21, 2016 | "Appeal Number: 0120170901\n\nBackground:\nAt the time of events giving rise to this complaint, Comp(...TRUNCATED) | "Kimbery H.,1\r\nComplainant,\r\nv. \r\nRobert M. Speer,\r\nActing Secretary,\r\nDepartment of the A(...TRUNCATED) | ["Gunn v. Small Business Administration, EEOC Appeal No. 0120080844 (Apr. 24, 2010)","Williams v. De(...TRUNCATED) | [-0.12256104499101639,0.1021457239985466,0.010130219161510468,0.03165602684020996,0.0051069241017103(...TRUNCATED) |
6 | https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2019001085.pdf | 2019001085.pdf | PDF | application/pdf | 30,326 | "Kenny C.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agenc(...TRUNCATED) | August 27, 2018 | "Appeal Number: 2019001085\n\nBackground:\nDuring the period at issue, Complainant worked as a n EEO(...TRUNCATED) | "Kenny C.,1\nComplainant,\nv.\nMatthew P. Donovan,\nActing Secretary,\nDepartment of the Air Force,\(...TRUNCATED) | ["Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990)","Peterson v.(...TRUNCATED) | [-0.0778558999300003,0.06697844713926315,-0.00515393540263176,0.042516592890024185,0.017368035390973(...TRUNCATED) |
7 | https://www.eeoc.gov/sites/default/files/decisions/2023_09_07/2023002326.pdf | 2023002326.pdf | PDF | application/pdf | 13,887 | Clay M .,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. | February 6, 2023 | "Appeal Number: 2023002326\n\nBackground:\nDuring the period at issue, Complainant w as an a pplican(...TRUNCATED) | "Clay M .,1\nComplainant,\nv.\nChristine Wormuth,\nSecretary,\nDepartment of the Army,\nAgency.\nApp(...TRUNCATED) | ["Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999)","Floyd v. Nat'l Guard Bu(...TRUNCATED) | [-0.15918846428394318,0.06341391056776047,-0.0404636487364769,0.03375857695937157,0.0013510144781321(...TRUNCATED) |
8 | https://www.eeoc.gov/sites/default/files/decisions/2022_04_20/2022000092.pdf | 2022000092.pdf | PDF | application/pdf | 26,153 | Warner A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. | October 7, 2021 | "Appeal Number: 2022000092\n\nBackground:\nAt the time of events giving rise to this complaint, Comp(...TRUNCATED) | "Warner A.,1\nComplainant,\nv.\nDenis R. McDonough,\nSecretary,\nDepartment of Veterans Affairs,\nAg(...TRUNCATED) | ["Cruz v. Dep’t of Defense, EEOC Appeal No. 2020000131 (July 28, 2021)","411 U.S. 792","545 F.2d 2(...TRUNCATED) | [-0.09409914165735245,0.09646442532539368,0.019623825326561928,0.023600636050105095,0.00075989781180(...TRUNCATED) |
9 | https://www.eeoc.gov/sites/default/files/migrated_files/decisions/01A42037_r.txt | 01A42037_r.txt | TXT | text/plain | 11,807 | "Frances Tam v. United States Postal Service 01A42037 December 17, 2004. Frances Tam, Complainant, v(...TRUNCATED) | December 17, 2004 | "Appeal Number: 01A42037\n\nCase Facts:\nOn March 12, 2003, complainant filed a formal EEO complaint(...TRUNCATED) | "Frances Tam v. United States Postal Service\r\n01A42037\r\nDecember 17, 2004.\r\nFrances Tam,\r\nCo(...TRUNCATED) | ["29 C.F.R. § 1614.107(a)","29 C.F.R. § 1614.405","29 C.F.R. § 1614.604","29 C.F.R. § 1614.604(c(...TRUNCATED) | [-0.04712348431348801,0.09442514181137085,0.09627086669206619,0.016906267032027245,0.036867182701826(...TRUNCATED) |
End of preview. Expand
in Data Studio
README.md exists but content is empty.
- Downloads last month
- 12