0120100014
02-17-2012
Kimberly K. Ennett, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Kimberly K. Ennett,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120100014
Agency No. HS-08-TSA-008541
DECISION
Complainant timely filed an appeal from the Agency's August 25, 2009
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.
The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a).
For the following reasons, the Commission VACATES the Agency's final
decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
an Engineer at the Agency’s Office of Security Technology in Arlington,
Virginia. On November 6, 2008, Complainant filed a formal complaint
alleging that the Agency subjected her to discrimination on the basis
of reprisal for prior protected EEO activity arising under Title VII when:
1. on August 22, 2008, the Program Manager (PM) sent Complainant an
email defining job expectations with unreasonable deliverables for
one person without additional resources, and the PM did not provide
Complainant adequate support to perform the critical functions of her
job as compared to other coworkers;
2. on September 9, 2008, the PM denied Complainant adequate time to
prepare information for her EEO claim;
3. on October 30, 2008, the PM issued Complainant a copy of the Job
Analysis Tool changing Complainant’s position from Supervisory General
Engineer to Engineer without a change in pay or grade;
4. on or about November 4, 2008, the PM forced Complainant to use annual
leave to vote, complying with the agency's leave policy, while other
employees were not required to use annual leave.
After the investigation, the Agency provided Complainant with a copy of
the report of investigation and notice of her right to request a hearing
before an EEOC Administrative Judge (AJ). When the Agency determined that
Complainant did not request a hearing within the time frame provided in
29 C.F.R. § 1614.108(f), the Agency issued a final decision on August
25, 2009, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.
CONTENTIONS ON APPEAL
In her submission on appeal, Complainant argued that the Agency
improperly issued a final decision because she had requested a hearing
before an AJ. Complainant provided copies of the fax submissions sent
to the Agency on July 22, 2009, in which she copied the Agency on her
request for a hearing, and included new contact information for her
attorney representative. The Agency did not submit a brief or statement
in opposition to Complainant’s appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.110(b), an Agency “shall take final action
by issuing a final decision” when a complainant does not reply to a
notice of the right to request a hearing before an EEOC Administrative
Judge (AJ) or an immediate final agency decision. The record shows
that the Agency issued Complainant a copy of the investigative file on
June 19, 2009. Complainant’s attorney received the investigative
file and notice of her right to request a hearing on June 22, 2009.
Complainant’s attorney submitted her request for a hearing to the
Washington Field Office of the EEOC and to the Agency on July 22, 2009.
Commission records reflect that prior to the issuance of the Agency’s
report of investigation, Complainant had submitted Complainant’s
Consent Motion to Consolidate Claims to the AJ assigned to Complainant’s
request for a hearing in Hearing Request No. 570-2008-00936X. In that
Motion, Complainant requested that the AJ consolidate the complaint
in her pending hearing request for Agency No. HS-08-TSA-000767, with
Agency No. HS-08-TSA-008541, in an attempt to avoid the fragmentation of
her claims. Following the Agency’s issuance of her right to request
a hearing in HS-08-TSA-008541, Complainant timely submitted a hearing
request. In an Order entitled Consolidation of Complaints issued on
October 28, 2009, the AJ ordered that Agency Nos. HS-08-TSA-000767
and HS-08-TSA-008541 would be consolidated for hearing under Hearing
No. 570-2008-00936X.
CONCLUSION
Therefore, based on a review of the record and the contentions on appeal,
we VACATE the Agency's final decision and REMAND the matter in accordance
with the ORDER below.
ORDER
To the extent it has not already done so, the Agency shall submit to
the Hearings Unit of the EEOC Washington Field Office the request for
a hearing within fifteen (15) calendar days of the date this decision
becomes final. The Agency is directed to submit a copy of the complaint
file to the EEOC Hearings Unit within fifteen (15) calendar days of
the date this decision becomes final. The Agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a
final action in accordance with 29 C.F.R. § 1614.110.
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
February 17, 2012
Date
2
0120100014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100014