[Redacted], Edwina W., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021001292 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edwina W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 2021001292 Hearing No. 410-2020-00281X Agency No. HS-CBP-01940-2019 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the June 29, 2021, final Agency decision dismissing her equal employment opportunity (EEO) 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. At the time of events giving rise to this complaint, Complainant worked as a General Attorney, GS-0905-14, at the Agency’s Office of Chief Counsel in Glynco, Georgia. On August 28, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race (Black), sex (female), and in reprisal for prior protected EEO activity when: 1. Since an unknown date, senior personnel within the Office of Chief Counsel have conspired with local management to conceal evidence of discrimination, retaliation and reprisal; 2. Since an unknown date, Complainant had been denied advanced training opportunities; 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. 2021001292 2 3. Since an unknown date, management had discounted Complainant’s work after she provided feedback to address incorrect legal information in training; 4. Since an unknown date, management has used its status as legal advisor for the Agency to interfere with Complainant’s participation in the informal EEO counseling process; 5. In or around April 2018, the Assistant Chief Counsel (ACC) expressed displeasure with the Family and Medical Leave Act (FMLA) maternity leave plan; 6. On September 14, 2018, the ACC visited Complainant’s home residence in an official capacity after Complainant did not respond to phone calls and text messages while on leave; 7. On June 24, 2019, the Deputy Chief Counsel (DCC) failed to act concerning Complainant’s report of misconduct; 8. On July 11, 2019, Complainant was threatened to be in violation of Agency policy if she refused to participate in a management inquiry interview; 9. Since July 26, 2019, Complainant’s workload has been manipulated and increased by the ACC and the DCC; and 10. On August 8, 2019, Complainant was questioned by the ACC. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Complainant subsequently notified the AJ assigned to the case that she had “removed this matter to federal court.” The AJ dismissed the complaint pursuant to 29 C.F.R. § 1614.109, which authorizes AJs to dismiss complaints pursuant to 29 C.F.R. § 1614.107, because Complainant filed a civil action in a United States District Court on the same matters as her administrative complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(3) provides that an agency shall dismiss a complaint that is the basis of a pending civil action in a United States District Court in which the complainant is a party. The Agency then issued a final decision fully implementing the AJ’s dismissal of the complaint. The instant appeal followed. The record shows that on April 21, 2021, Complainant filed a civil action (identified as Civil Action No. 1:21-cv-1115) in the United States District Court for the District of Columbia. The record further shows that the claims raised therein include the same as those raised in the instant complaint. Therefore, we find that the complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(3). CONCLUSION Accordingly, the Agency’s final order dismissing the complaint is AFFIRMED. 2021001292 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021001292 4 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 February 16, 2022 Date