[Redacted], Azucena A., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 29, 2020

Appeal No. 2019002893 (E.E.O.C. Dec. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Azucena A.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Request No. 2020004602 Appeal No. 2019002893 Agency No. BOP-2017-0752 BOP-2017-0952 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019002893 (August 4, 2020). 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). For the following reasons, the Agency’s request is DENIED. PROCEDURAL BACKGROUND On June 15, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior protected EEO activity under Title VII when: 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. 2020004602 2 1. Complainant was subjected to harassment (sexual and non-sexual) from December 2014 - May 2017; and 2. because of harassment, Complainant was constructively discharged effective May 27, 2017. The Agency treated these two claims as separate EEO complaints, assigning them separate EEO complaint docket numbers: Complaint 1 (Agency No. BOP-2017-0752) alleging harassment and Complaint 2 (Agency No. BOP-2017-0952) alleging constructive discharge. On August 2, 2017, the Agency issued an Acceptance letter, noting both complaint numbers, for a consolidated EEO investigation. Following the consolidated investigation on Complaints 1 and 2, on January 19, 2018, the Agency gave Complainant its investigative report and a notice to Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate FAD on Complaint 1. Also on January 19, 2018, the Agency gave Complainant its investigative report on Complaint 2, identifying the complaint as a mixed-case complaint over which the Merit Systems Protection Board (MSPB) had potential jurisdiction, and notifying Complainant that the Agency would be issuing a FAD with appeal rights to MSPB. On February 26, 2018, Complainant requested a hearing, citing both Complaints 1 and 2 even though she was only entitled to a hearing on Complaint 1. Shortly thereafter, on March 14, 2018, the Agency issued a FAD, citing both Complaints 1 and 2 even though Complainant had requested a hearing on Complaint 1. The FAD gave Complainant appeal rights to the MSPB, not the EEOC, even though Complainant was only entitled to MSPB rights on Complaint 2. Also in the FAD, the Agency determined that Complainant failed to timely initiate EEO counseling on part of Complaint 1, and found no discrimination on the entirety of both Complaints 1 and 2, including the portion of Complaint 1 it had found untimely. With that FAD, the Agency provided Complainant an MSPB appeal form that notifies the appellee of the right to request a hearing before the MSPB. On April 13, 2018, Complainant filed an appeal with the MSPB. On December 13, 2018, the MSPB issued an initial decision recounting that Complainant requested a hearing but dismissing the appeal without a hearing for lack of jurisdiction. The MSPB decision notified Complainant that she had a right to file an appeal with the Office of Federal Operations (OFO) to “review” discrimination claims over Complaint 2. Thereafter, Complainant timely filed an appeal, citing the complaint numbers for both Complaints 1 and 2. OFO received Complainant’s appeal on February 21, 2019. On appeal, Complainant argued that her case was unmixed by the MSPB; and that the EEOC now had jurisdiction to decide the matter on the merits. 2020004602 3 On July 8, 2019, the EEOC AJ dismissed Complainant’s request for a hearing, “pending the outcome” of her appeal before OFO on Complaints 1 and 2 and closed out the hearing request. On August 2, 2020, in EEOC Appeal No. 2019002893, we remanded the case for a hearing, citing, in part, 1614.302(b), which provides that “if a person files a timely appeal with MSPB from the agency’s processing of a mixed case complaint and the MSPB dismissed it for jurisdictional reasons, the agency shall reissue a notice under 1614.108(f) giving the individual the right to elect between a hearing before an administrative judge and an immediate final decision.” The decision stated that, in her appeal, Complainant did not explicitly request a hearing, but cited two Commission decisions. In one of the cited decisions, the Commission affirmed the decision of an EEOC AJ to retain jurisdiction over a complainant’s discriminatory constructive discharge claim over an agency objection while the MSPB consider jurisdiction over the mixed claim. The second decision remanded an un-mixed complaint to an EEOC AJ following the MSPB’s dismissal of a complainant’s constructive discharge claim for lack of jurisdiction. The previous decision also found, given Complainant’s prior hearing requests and the cases she cited on appeal, that Complainant was intending to request a hearing before an EEOC AJ on both Complaints 1 and 2. Therefore, the previous decision ordered the Agency to as closely as possible resume the processing of Complaints 1 and 2 in the EEO process from the point processing ceased. On August 24, 2020, the Agency submitted a Request for Reconsideration (RFR). In its RFR, the Agency argues that Complainant is not entitled to a hearing because, on March 14, 2018, the Agency already issued an FAD on the merits of Complainant’s complaints. The Agency also argues that “there is no right to a hearing before an EEOC administrative judge on a mixed case complaint.” Instead, the Agency argues, OFO should affirm the FAD in the Agency’s favor and affirm the MSPB AJ’s dismissal of Complainant’s appeal. Upon review, we find that the decision in EEOC Appeal No. 2019002893 was correct but should be clarified. We note that Complainant’s sexual harassment claim in Complaint 1 should have been sent to an EEOC AJ for a hearing as Complainant had timely requested a hearing on this non- mixed matter. Regarding Complaint 1, the assigned AJ should have held Complaint 1 in abeyance while the MSPB determined whether or not it had jurisdiction over Complaint 2. We further clarify our previous decision in that when the MSPB AJ ruled that MSPB did not have jurisdiction, it essentially “unmixed” Complaint 2 such that the complaint became a regular complaint for which Complainant had the right to elect a hearing or a FAD. See 29 C.F.R. § 1614.302(b) (providing that “if a person files a timely appeal with MSPB from the agency’s processing of a mixed case complaint and the MSPB dismissed it for jurisdictional reasons, the agency shall reissue a notice under 1614.108(f) giving the individual the right to elect between a hearing before an administrative judge and an immediate final decision.”). We note that in our previous decision, we cited 1614.302(b), but also incorrectly cited 1614.302(c)(2)(ii), as pointed out by the Agency. 2020004602 4 Due to the incorrect citation, rather than remanding the case to the Agency to notify Complainant of her right to elect between a hearing or an immediate final decision, we reasonably assumed that Complainant wanted a hearing based on her appeal. As Complainant did not request reconsideration of the previous decision, we presume Complainant accepted the previous decision’s order remanding Complaint 2 for a hearing before an EEOC AJ. 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. 2019002893 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. The Agency will resume the processing of Complaints 1 and 2 in the EEO process from the point processing ceased as ordered below. ORDER Within 20 calendar days of the date of this decision, the Agency shall, on behalf of Complainant, request a hearing on Complaints 1 and 2 with the appropriate EEOC Hearings Unit and shall include the complete record in both complaints, as well as a copy of this decision. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 2020004602 5 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 December 29, 2020 Date