Hertha W.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Mar 7, 2018

0520180106 (E.E.O.C. Mar. 7, 2018)

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

Hertha W.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security,
Agency.

Request No. 0520180106

Appeal No. 0120152123

Hearing No. 570-2012-00645X

Agency No. HSHQ007832011

DECISION ON REQUEST FOR RECONSIDERATION

Complainant requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120152123 (October 11, 2017).
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 appeal, Complainant alleged that the Agency subjected her to unlawful race
and sex discrimination when in February 2011, management did not select her for a position as
GS-14 Supervisory Criminal Investigator, TMB, National Protection and Programs Directorate
under vacancy announcement number FS394934DE/MD-NMH11. Following an investigation,
Complainant initially requested a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ), but subsequently withdrew her request. The AJ, therefore, remanded
the matter to the Agency for a final decision. Following a supplemental investigation, the

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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Agency issued a final decision finding no discrimination. On appeal, the Commission affirmed
the final decision, concluding that Complainant failed to show that her qualifications for the
position were objectively superior to those of the selectee. We also remanded to the Agency for
supplemental investigation an additional claim raised by Complainant prior to her withdrawing
her hearing request. Specifically, the claim that the Agency subjected Complainant to unlawful
retaliation when on May 3, 2012, the Regional Director and subordinates under his direction
“ransacked” Complainant’s office suite.

In her request for reconsideration, Complainant largely reiterates arguments made, and fully
considered on appeal. We also note that, although Complainant requested on appeal that the
Commission issue default judgment against the Agency as a sanction for its failure to issue a
timely final decision, the decision on appeal failed to address this sanction request. We find,
however, that we did not err in not awarding sanctions in this case as the Agency did not act in a
manner to warrant a default judgment. See, e.g., Josefina L. v. Soc. Sec. Admin., EEOC Appeal
No. 0120142023 (July 19, 2016), req. for recon. den'd, EEOC Request No. 0520170108 (Feb. 9,
2017) (finding that the agency's 571-day delay in issuing the Agency decision did not warrant
sanctions, as complainant did not show she was prejudiced by the delay); Jocelyn R. v. Dep't of
Defense, EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv.,
EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a
decision after approximately 371 days)).

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 in EEOC Appeal No. 0120152123 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request. The Agency is directed to comply with the Order herein.

ORDER (E1016)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

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IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)

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 77960, Washington, DC 20013. The
Agency's report must contain supporting documentation, and the Agency must send a copy of all
submissions to the Complainant. 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, 1614.403, 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 1614.403. 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.

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.
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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

March 7, 2018
Date