0120122511
05-22-2013
Jill M. Hall, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Jill M. Hall,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120122511
Agency No. FBI-2011-00209
DECISION
Complainant filed an appeal with this Commission from the regarding the Agency's closing of 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 as a Telecommunications Specialist at the Agency's facility in Quantico, Virginia.
On May 26, 2011, Complainant contacted the Agency's EEO Office. When her issues could not be resolved informally, Complainant was provided with a Notice of Right to file her formal complaint. On July 26, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and age (46) when:
1. On March 8, 2011, Complainant was told that she was no longer allowed to work from Quantico.
2. Complainant was told that she would have to provide a doctor's note for any medical appointments she had.
3. On April 12, 2011, Complainant was told that her "CVA project" was being transferred to the "PBX team."
An on the bases of race, age and reprisal when:
4. Complainant was advised that someone else was taking the lead on a project she was working on for several years.
5. Her supervisor did not return Complainant's phone calls or emails;
6. Complainant's Alternative Work Schedule was suspended for six months.
7. In June 2011, Complainant was denied a training class which she had scheduled.
8. Complainant was not permitted to travel to San Juan for a project for which she was responsible.
9. Complainant was given a performance rating of "Unacceptable" and placed on a Performance Improvement Plan.
10. Complainant was denied a Within Grade Increase (WIGI).
11. Complainant was denied annual leave on June 1, 2011 and July 22, 2011.
12. Complainant was denied the opportunity for a walk-through at the Facility.
By letter dated August 9, 2011, the Agency acknowledged her formal complaint. On November 9, 2011, the Agency issued its notification to Complainant that it was going to investigate claims (1) - (3) of her complaint. The Agency dismissed claims (4) - (6) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. Specifically, the Agency noted that these events occurred between January 2011 and March 2011. The Agency noted that these events may serve as background evidence to the accepted claims. The Agency dismissed claims (7) - (12) for failure to raise these issue with the EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency informed Complainant that she could contact the EEO Counselor if she wished to pursue these events.
The record indicated that Complainant raised claim (10) in an appeal with the Merit Systems Protection Board (MSPB). Complainant noted that the Agency had not investigated the matter. On December 7, 2011, Complainant intended to request that the Agency "suspend" her complaint pending her appeal with the MSPB. However, Complainant sent an email stating her request to "withdraw" her EEO complaint. The following day, Complainant realized her error and contacted the EEO Officer requesting the suspension of her EEO complaint on December 8, 2011. She was told by the EEO Officer that due to her email, the EEO complaint had been closed.
On May 29, 2012, Complainant filed an appeal with the Commission trying to correct the situation. Complainant noted that she never received any document closing her complaint file. Further, on September 19, 2012, Complainant had her MSPB appeal dismissed with prejudice so that she can pursue her EEO discrimination complaint. Complainant asks that the Commission assist her in opening her EEO complaint.
ANALYSIS AND FINDINGS
Upon review of the record, we find that the Agency failed to provide Complainant with any documentation closing her EEO complaint. Further, Complainant has shown that when she contacted the Agency on December 7, 2011, she misstated her request. The very next day, Complainant contacted the Agency and informed them that she wished her EEO complaint be suspended pending the MSPB appeal. Based on our review of the record and her MSPB appeal, we find that Complainant clarified her error and properly informed the Agency that she would like to suspend her EEO complaint. The Agency should not have closed the matter. Further, the MPSB appeal has been withdrawn with prejudice for Complainant to pursue her discrimination complaint.
CONCLUSION
Therefore, we REVERSE the Agency's decision to close Complainant's EEO complaint and REMAND the matter for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded compliant in accordance with 29 C.F.R. � 1614.108 to the point where processing ceased. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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.
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, 1614.408, 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.
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 (R0610)
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 (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
May 22, 2013
__________________
Date
2
0120122511
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122511