Marvella B.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Sep 28, 2018

0520180380 (E.E.O.C. Sep. 28, 2018)

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

Marvella B.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Request No. 0520180380

Appeal No. 0120150997

Hearing No. 520-2013-00297X

Agency No. 12R2FASSJ03

DECISION ON REQUEST FOR RECONSIDERATION

The Agency requested that the Equal Employment Opportunity Commission (EEOC or
Commission) reconsider its decision in EEOC Appeal No. 0120150997 (April 3, 2018). 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 complaint, Complainant alleged that the Agency discriminated against her on
the bases of race (African-American), sex (female), and age (40) when:

1. Beginning February 2011 and continuing, management has been asking
Complainant if she was planning to retire;
2. On February 21, 2011, management detailed Complainant to the Digitization
Project;

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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3. On March 7, 2011, management took away Complainant’s Contracting Officer’s
warrant; and
4. On October 25, 2011, Complainant was informed that management held a
meeting with contract employees and attempted to solicit derogatory written
statements about Complainant’s work performance on the Digitization Project.

At the conclusion of 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 Equal Employment
Opportunity Commission Administrative Judge (AJ). The AJ determined sua sponte that the
complaint did not warrant a hearing and, over Complainant’s objections, issued a decision
without a hearing in favor of the Agency finding no discrimination. The Agency issued a final
action fully implementing the AJ’s decision. Complainant appealed the Agency’s final action to
the Commission. In EEOC Appeal No. 0120150997, the Commission determined judgment as a
matter of law for the Agency should not have granted as to Complainant’s hostile work
environment claim. The Commission also found the Agency properly dismissed claims 2 and 3
as untimely discrete acts. However, the Commission noted that neither the AJ’s decision nor the
Agency’s final action addressed claims 2 and 3, even though they appeared to be part of the same
unlawful practice as timely harassment claims 1 and 4. Thus, the Commission ordered the AJ to
reverse the Agency’s dismissal of claims 2 and 3 and conduct a hearing on Complainant’s hostile
work environment claim, consisting of allegations 1 through 4.

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. 0120150997 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC New York District
Office Hearings Unit within 15 days of the date this decision is issued. 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 New York District Office Hearings Unit. Thereafter,
the Administrative Judge shall reverse the Agency's procedural dismissal of claims 2 and 3 of the
instant matter and shall hold a hearing on Complainant's complaint, claims 1 through 4 of the
instant matter. At the hearing, Complainant shall have the opportunity to present her case and
the opportunity to cross-examine all Agency witnesses, including Sl and S3. The Administrative
Judge shall thereafter issue a decision 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.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.

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.

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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

September 28, 2018
Date