a Willa B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0520180528 (E.E.O.C. Oct. 18, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

a
Willa B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Request No. 0520180528

Appeal No. 0120162798

Hearing No. 570-2009-00181X

Agency No. DOSF05309

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120162798 (June 29, 2018). EEOC
Regulations provide that the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting
party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of
material fact or law; or (2) the appellate decision will have a substantial impact on the policies,
practices, or operations of the agency. See 29 C.F.R. § 1614.405(c).

In her underlying complaint, Complainant alleged that the Agency subjected her to unlawful
discrimination when:

1. Based on her sex (female), she was subjected to a sexual harassing and intimidating
hostile work environment by uniformed security guards from January 16, 2003
through January 4, 2008;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. Based on her sex and in reprisal for prior protected EEO activity under Title VII, the
Agency's Bureau of Diplomatic Security's Office of Professional Responsibility
forwarded a criminal report of investigation involving her to the Bureau of
Diplomatic Security's Office of Personnel Security and Suitability in or around
January 2008, which upon receipt began a review of her continued security clearance
eligibility and prompted the latter office on February 21, 2008, to instruct
Complainant to contact the Agency’s Office of Medical Services for an evaluation
under the medical provisions of E.O. 10450 and 12968; and

3. Based on her sex and in reprisal for prior protected EEO activity under Title VII, the
Office of Personnel Security and Suitability requested she submit to a mental
evaluation with the Agency’s Office of Medical Services on December 8, 2008, and
implied that failure to cooperate could result in the suspension of her security
clearance.

The Commission addressed the entire procedural history of Complainant’s complaints in EEOC
Appeal No. 0120162798 and since Complainant’s request for reconsideration involves only the
dismissal of Issue 1, we will only address that issue herein. The Agency dismissed Issue 1
finding that while Complainant had alleged earlier incidents in support of her hostile work
environment claim, there was a two-year gap between those incidents and an incident that
occurred in November 2007. The Agency found the earlier incidents were not sufficiently related
to the more recent incidents to be a part of a single claim. The Agency found that Complainant
did not timely initiate EEO counseling within 45 days of the date she alleged she was
discriminated against. The Agency found she initiated EEO counseling on February 8, 2008, and
therefore only incidents starting in November 2007 and forward could reasonably be a part of her
hostile work environment claim. The Agency found that those most recent incidents did not rise
to the level of actionable harassment. In October 2013, an AJ affirmed the dismissal of Issue 1.
Ultimately, the AJ granted the Agency’s Motion for Summary Judgment on the remaining two
issues and Complainant appealed to the Commission regarding all three issues when the Agency
issued a final order on August 11, 2016.

On appeal, the Commission affirmed the Agency’s decision dismissing Issue 1 and reversed the
Agency’s decision regarding Issues 2 and 3. The Commission remanded Issues 2 and 3 for
further processing. Regarding Issue 1, the Commission found that the Agency’s reasons for
dismissing Issue 1 were proper.

In her request for reconsideration, Complainant largely reiterates contentions made and fully
considered on appeal. Specifically, Complainant does not provide any evidence to show 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. Additionally, Complainant does not provide any evidence not already considered to
establish that she informed the EEO Counselor of incidents of discrimination during the two-year
gap.
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Accordingly, after reviewing the previous decision and the entire record, the Commission finds
that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision and order in EEOC Appeal No. 0120162798
remains the Commission's decision. The Agency shall comply with the order herein. There is no
further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency shall submit, on Complainant's behalf, a request for a hearing on the remanded
issues to the appropriate EEOC Hearings Unit, a brief cover letter explaining its reason for doing
so, and a copy of this decision, as well as the complaint file. The EEOC Hearings Unit shall
resume processing under 29 C.F.R. Part 1614 from the point processing ceased. The Agency
shall provide a copy of its request submission to Complainant, as well as the Compliance Officer
as referenced below. The Agency shall complete the above actions within 35 calendar days from
the date of this decision.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action
on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 &
Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (Q0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. 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 (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

October 18, 2018
Date