0120141316
06-24-2016
Luvenia S,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Luvenia S,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120141316
Agency No. HSCIS005082013
DISMISSAL OF APPEAL
On February 19, 2014, Complainant filed an appeal with this Commission from the Agency's decision dated January 15, 2014, concerning 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as an Immigration Services Analyst at the Agency's Detroit Field Office in Detroit, Michigan. On February 28, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American), sex (female), color (Black), disability (vision impairment), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In April 1998, she was selected for a Special Operations Immigrations Inspector position, GS-9, at the Detroit Metropolitan Airport, but due to her vision impairment, was unable to complete the firearms training, and was denied an opportunity to re-test;
2. From May through August 2008, she had disagreements with her manager, who also made comments about not understanding Spanish accents, after which she was removed from this manager's supervision;
3. From October 2011 through November 2012, her supervisor made a negative racial comment, asked her out for a drink, assigned her additional duties, requested co-workers' opinions about her performance, threatened to give her an unacceptable performance appraisal, and threatened to put her on a performance improvement plan; and
4. On November 20, 2012, she was constructively discharged when she was forced to retire.
The Agency dismissed claims 1 and 2 for being untimely, and accepted claims 3 and 4 as a mixed case complaint for investigation. On January 15, 2014, the Agency issued a final decision with no finding of unlawful discrimination. The Agency held that management provided legitimate non-discriminatory reasons for its actions and that the Complainant did not show that the reasons were pretext for discrimination. The Agency also found that Complainant had not shown that the Agency had subjected her to discriminatory behavior sufficiently severe or pervasive to create a hostile or abusive work environment. Additionally, in regards to claim 4, the Agency found that Complainant had not established that her managers engaged in discriminatory actions so intolerable that she had no other choice but to resign.
A mixed case complaint is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or genetic information related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). 29 C.F.R. � 1614.302(a)(1). As a general matter, if an employee is dissatisfied with the Agency's final decision on the mixed case complaint, the employee may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the agency's final decision. 29 C.F.R. � 1614.302(d)(1)(ii). At the time that the Agency issues its final decision on a mixed case complaint, the Agency shall advise the employee of the right to appeal the matter to the MSPB (not EEOC) within 30 days of receipt and of the right to file a civil action as provided at � 1614.310(a). 29 C.F.R. � 1614.302(d)(3). Once an individual has received a final decision from the MSPB on the appeal of a final decision on a mixed case complaint, he or she may petition EEOC to consider the MSPB's decision. 29 C.F.R. � 1614.303(a).
Here, Complainant filed a complaint which the Agency accepted and investigated as a mixed case complaint. Upon issuance of the final decision, the Agency also provided Complainant with information about her right to appeal with the MSPB, not the EEOC. However, Complainant filed her appeal with the EEOC on February 19, 2014. We note that the Agency also emailed Complainant on March 5, 2014, informing her that her appeal was improperly before the EEOC, and that she needed to file her appeal with the MSPB. Under 29 C.F.R. � 1614.302(d)(1)(ii), the Commission has no jurisdiction to consider Complainant's appeal.
CONCLUSION
Accordingly, Complainant's appeal is hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610)
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. If you file a request to reconsider and also file a civil action, 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
__6/24/16________________
Date
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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