[Redacted], Jasmine L., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2021001367 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jasmine L.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2021001367 Agency No. ACUS-20-BC-0003 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 16, 2020, dismissing 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor, GS-14, at the Agency’s Administrative Conference of the United States (ACUS) in Washington, D.C. On September 19, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African American), sex (female), and reprisal for prior protected EEO activity (Agency No. GSA-19-ACUS-BC-0002) when: 1. As early as August 29, 2019, and on an ongoing basis until the present, the ACUS and GSA collectively placed information in Complainant’s Official Personnel File (OPF) that was untrue, that they conceded to be untrue, and was unsupported by documentary evidence. 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. 2021001367 2 2. On May 15, 2020, Complainant received a corrected SF-50 that listed code L2M in Box 5-C which generated in Box 5 - D Legal Authority SEP-UNSA T PERFORM/CONDUCT-PROBATION. 3. On an unspecified date, the Agency offered to change Complainant's termination to a resignation after Complainant informed the Agency that she intended to file a discrimination suit. Complainant declined the Agency’s offer and instead filed suit against the Agency, which the parties settled. 4. On two unspecified dates, the Agency placed false and negative information in Complainant's personnel file. The information was contrary to the Agency’s own description Complainant’s performance as “successful.” The Agency refused to remove the negative information although it was not legally restricted from doing so. The Agency dismissed the present complaint pursuant to 29 C.F.R. § 1614.107(a)(1) on the ground that Complainant had previously raised the same claim in an earlier complaint that had been appealed to and decided by EEOC in Appeal No. 2020004322 (January 5, 2021). In addition, the Agency dismissed the present claim, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. The instant appeal followed. Complainant submitted a memorandum in support of her appeal. On appeal, Complainant, argues that her present complaint differs from her prior claim. In addition, asserts that she contacted an EEO counselor timely. The Agency submitted a brief and revised brief in response. ANALYSIS AND FINDINGS The Agency dismissed the present claim pursuant to 29 C.F.R. § 107(a)(1). EEOC regulation 29 C.F.R. § 107(a)(1) requires an agency to dismiss a complaint that is pending or has been decided by the Commission. In so doing, the Agency found that “the matters in the instant complaint are the same matters that are pending on appeal before the EEOC under Appeal No. 2020004322 . . . the issues raised in the instant complaint cannot be distinguished from and are not independent of the issues in your pending appeal.” In its revised brief, the Agency specifically stated that “Complainant’s claim about the SF-50 is necessarily the same as her [settlement agreement] compliance claim on which the [EEOC] has already ruled.” On appeal, Complainant argues the present complaint differs from her prior claim. However, she has recited identical facts in both claims and implicated identical responsible management officials with slight exceptions. For instance, in her memorandum dated January 18, 2021, Complainant states that on May 9, 2020 she “emailed GSA OHRM regarding the need to correct her SF-50” and that “on May 15, 2020 . . . [an Agency official] emailed her a corrected SF-50 . . . [that was] not accurate.” 2021001367 3 These are the same facts that were discussed in Appeal No. 2020004322, where the Commission described that the same Agency official “attempted to correct the code [on the SF-50], but he added that . . . it would not be appropriate to reopen or otherwise reevaluate other elements of the separation.” Appeal No. 2020004322 was decided in Complainant’s favor. The Commission determined that the Agency breached its settlement agreement with Complainant. The Commission specifically stated the following regarding the negative information in Complainant’s personnel file: To the extent that the Agency released additional negative information via a SF- 50 or SF-52, we find that it was not acting in accordance with the terms of the Agreement, provision 2 and 3. Based on the foregoing, we find that Complainant’s present claim and prior claim attacked the same purported discriminatory actions - the inaccurate SF-50s that were placed in Complainant’s file in breach of her settlement agreement. In addition, the Agency dismissed Complainant’s complaint for not following timelines delineated in 29 C.F.R. §§ 1614.105, 1614.106. Because we find that the complaint should be dismissed for other reasons, we do not need to consider alternative grounds for dismissal. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 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). 2021001367 4 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). 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. 2021001367 5 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 June 17, 2021 Date