[Redacted], Ciara S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Nov 29, 2021

Appeal No. 2022000170 (E.E.O.C. Nov. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ciara S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2022000170 Agency No. BOP-2019-01435 DECISION On October 14, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), concerning her equal employment opportunity (EEO) complaint alleging 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Advanced Care Level Psychologist, Grade GS-13, at the Agency’s Federal Medical Center Carswell in Fort Worth, Texas. In November 2018, an inmate physically assaulted Complainant. After the assault, Complainant was placed on light duty because of injuries she had sustained during the assault. On February 10, 2020, Complainant filed a formal complaint alleging that the Agency discriminated against her based on sex (female) and in reprisal EEO-protected activity 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. 2 2022000170 1. On October 16, 2019, Complainant was issued a Fitness-for-Duty letter after she received a response to her request for a reasonable accommodation; 2. From August 1, 2019 through January 2020, Complainant's reasonable accommodation request that the Agency provided did not adhere to her physician’s restrictions; 3. From January 2019 through September 2019, Complainant was subjected to sexual harassment in the form of excessive calls, inappropriate comments, and requests for personal information; 4. On September 12, 2019, Complainant was subjected to harassment from her supervisor when he sent her excessive emails regarding information that had previously been provided to him; 5. From May 2019 through October 2019, Complainant was treated differently than her male co-worker in the form of excessive supervision and inequitable workload; and 6. On September 19, 2019, Complainant became aware that she was not selected for the Health Systems Specialist (Medical Designator/Utilization Review Administration) position, vacancy announcement number CO-2019-0171. After an 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). Complainant timely requested a hearing. On October 20, 2020, the AJ issued an initial acknowledgment. Thereafter, Complainant withdrew her hearing request. On August 12, 2021 the AJ granted the request withdrawal and ordered the matter remanded to the Agency for a final decision pursuant to 29 C.F.R. § 1614.110(b). Approximately one year later, on October 14, 2021, when no final decision had been issued, Complainant filed the instant appeal. Complainant’s appeal is premature, as there has been no FAD from which to appeal. Therefore, her appeal is DISMISSED. Nonetheless, we note that the AJ required, pursuant to 29 C.F.R. § 1614.110(b), to have issued its FAD within 60 calendar days of its receipt of the remand from the AJ.2 As the Agency appears to have not done so, we are ordering the Agency to issue a FAD on the matter, as set forth below. 2 We note the AJ’s remand suggests the Agency’s decision needed to be issued within 40 days of its receipt. However, even providing the Agency the regulatory 60 days to issue its final decision when no AJ decision has been made, the Agency’s final decision is long overdue. 3 2022000170 ORDER If it has not already done so, then the Agency is ORDERED to issue its final decision on this complaint, pursuant to 29 C.F.R. § 1614.110(b), no later than 30 calendar days from the date of this decision. The final decision shall contain the appropriate appeal rights to the Commission. 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. 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 Complainant and 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). 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. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, 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 Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 29 C.F.R. § 1614.409. Failure by the 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 against the Agency. 4 2022000170 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) at Ch. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, OFO, EEOC. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington DC 20013, or by certified mail to 131 M St. 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. 29 C.F.R. § 1614.604. The Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). 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. 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. 5 2022000170 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 (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 November 29, 2021 Date