0520140150
07-22-2014
Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520140150
Appeal No. 0120131673
Agency No. P-2012-01215
DENIAL
Complainant requested reconsideration of the decision in EEOC Appeal No. 0120131673 (Dec. 19, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. See 29 C.F.R. � 1614.405(c).
BACKGROUND
Complainant worked as a probationary Clinical Nurse. The record indicates that Complainant arrived at work on April 30, 2012 and was called to the office of the Personnel Manager. The Personnel Manager promptly advised Complainant that she would have to resign, or else she would be terminated. The Personnel Manager cited her performance, specifically an incident involving an inmate and an error regarding a needle count. The Personnel Manager encouraged Complainant to resign because it would preserve her opportunities for a career with the Agency; she would be able to apply at another facility. The Personnel Manager needed her to decide immediately, so Complainant chose to resign and preserve the option of being rehired.
After unsuccessfully applying to other Agency positions, Complainant contacted an EEO counselor on September 14, 2012. She then filed an EEO complaint, alleging discrimination on the bases of sex (female) and age (48) when the Agency asked her to resign or be terminated from her position on April 30, 2012.
The Agency dismissed the complaint for untimely EEO counselor contact. Complainant appealed, maintaining that she did not have cause to reasonably suspect discrimination until mid-August 2012.
Upon review, the Commission affirmed the Agency's dismissal. The Commission reasoned that Complainant had failed to explain why she began to suspect discrimination in mid-August 2012. Rather, the Commission maintained that Complainant should have reasonably suspected discrimination on the day that she resigned from her position, April 30, 2012, and should have contacted an EEO counselor within 45 days of that day. Because she did not, and because she failed to present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact, the Commission affirmed the Agency's final decision, dismissing the complaint.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In her request for reconsideration, Complainant maintains that the previous decision overlooked or misinterpreted the fact that she lacked information about the Agency's grounds for asking her resignation on April 30, 2012, and that it was only much later after speaking to numerous different Agency officials that she began to suspect that the Agency had asked for her resignation for discriminatory reasons. In addition, she maintains the previous decision discounted her fear of retaliation.
According to Complainant, when she resigned from her position, she had no information. She did not know what was reported about her performance regarding the incident with the inmate, whether her nursing license would be revoked, whether the FBI would investigate the incident, whether the Agency would deny her unemployment compensation.
After applying for various jobs with the Agency and speaking with various Agency officials, she found out on August 20, 2012 that the Warden had been removed for allegations of misconduct and inappropriate use of his position with female staff members. After learning about this, Complainant maintains she began to have a reasonable suspicion that she had been forced to resign because of her age and sex:
From the beginning, I believe that I was hired . . . because [the warden] wanted me to be hired. He had an attraction to me which was based on my appearance and he was interested in me for personal reasons. It is my practice to try to get along with people, and I was only interested in maintaining professional relationships with my co-workers and Supervisors. I made this clear to [the Warden] in my interactions with him. I made it clear at the Holiday Party when he asked me about my age and offered to buy me a drink when I returned from training . . . . I made it clear when he told me 'owes me a drink' following the incident which occurred with [the inmate].
I believe that [another official] was acting in line with the Warden's agenda when she began to make issues for me and exaggerate the magnitude of any mistakes that I made during my initial On the Job performance period. I believe she did this because in doing so, I would either change my attitude and endear myself to the Warden, or, I would be let go . . . . It is for this reason that there was never any official disciplinary action or discussion about the details and where to place blame following the incident with [the inmate] which occurred in March, 2012.
Complainant also maintains that she did not know the time limits for initiating EEO counselor contact, because during orientation she was given too many documents to review or study and there was too much information to focus on the details of the EEOC guidelines.
ANALYSIS
A request for reconsideration is not a second appeal. Here, Complainant raises the arguments previously made (and in some cases elaborates and expands on them), which have already been considered in the previous decision. Moreover, if Complainant is now alleging that management officials forced her to resign because she had rejected the romantic advances of the Warden, we find it reasonable for her to have been suspicious of the Agency's actions during her tenure at the Agency, rather than four months after she left the Agency.
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 in EEOC Appeal No. 0120131673 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___7/22/14_______________
Date
2
0520140150
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140150