[Redacted], Kasi J, 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021002280 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kasi J,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021002280 Agency No. FBI-2020-00216 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 28, 2021, dismissing a formal complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant was employed by the Agency as a Security Specialist in the Agency’s Record Management Division in Winchester, Virginia.2 Complainant filed a prior EEO complaint with the Agency in 2009, claiming that she was denied a reasonable accommodation, subjected to a hostile work environment, and terminated from Agency employment. Subsequent to an investigation, the Agency issued a final decision finding no discrimination. Complainant appealed to EEOC. We reversed the Agency’s final decision and found Complainant was denied reasonable accommodation for her disability as alleged, and subjected to a hostile work environment culminating in her termination in retaliation for requesting 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 Complainant was subsequently reassigned to a Records Conversion Technician (RCT) position. 2021002280 2 reasonable accommodation. EEOC Appeal No. 0120121339 (May 8, 2015), req. for recons. denied, EEOC Request No. 0520150404 (Nov. 12, 2015). To remedy Complainant for the Agency’s discriminatory conduct, OFO ordered the Agency to take various actions including the following: 1. Offer Complainant reinstatement to the position of Record Conversion Technician at its Record Management Division facility in Winchester, Virginia or a substantially equivalent and agreeable position, retroactive to December 4, 2009. Engage in the interactive process with Complainant to determine what accommodations may be necessary and effective, if Complainant should require reasonable accommodation. Complainant filed a petition for enforcement. In EEOC Petition No. 0420160012 (Oct. 3, 2017), we denied the petition for enforcement, reasoning that the Agency was in full compliance. Specifically, the appellate decision found that “the record reflects that the Agency offered [Complainant] a substantially equivalent position-a Records Conversation Specialist (RCS) position GS-12, Step 1 at its Winchester, Virginia facility…The record reflects that on February 23, 2016, [Complainant] accepted the offer…While the Order referenced reasonable accommodation in the reinstated position, we note that the Agency has expressly invited [Complainant] to submit an accommodation request to its Reasonable Accommodation Office.” EEOC Petition No. 0420160012 (Oct. 3, 2017). Complainant, in the instant matter, sets forth that the Agency determined subsequently that it could not accommodate her in the RCS position and put her in a leave without pay status. Complainant states that on or about May 30, 2019, the Agency offered her the position of Personnel Security Specialist, which she accepted. Complainant asserts that the Agency initiated a background investigation even though she was a current Agency employee. Subsequently, the Agency issued the December 30, 2019 letter setting forth that the background investigation determined that she did not meet the suitability standards for Agency employment. On September 28, 2020, Complainant filed a new formal EEO complaint alleging discrimination the bases of disability and reprisal for prior protected activity. In a final decision dated January 28, 2021, the Agency issued a final decision and framed Complainant’s claims in the following fashion: (1) By letter dated December 30, 2019, Complainant was informed she did not meet suitability standards for employment with the FBI; and (2) Complainant has not received a response to her Freedom of Information/Privacy Act (FOIA/PA) request. 2021002280 3 The Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency reasoned that Complainant indicated that she received the December 30, 2019 letter on or about January 8, 2020, but did not initiate EEO contact until August 21, 2020, outside the applicable time period. The Agency further stated that Complainant asserted that she had ongoing communication with the EEOC in January and February 2020.3 However, the Agency, in its final decision, found that this explanation was insufficient to extend the applicable time period. The Agency, in its final decision, dismissed claim (2) for failure to state a claim reasoning that the EEOC does not have jurisdiction over the FOIA requests or Privacy Act violations. The instant appeal followed. On appeal, Complainant, through her attorney, asserts that she timely initiated EEO contact. Specifically, Complainant asserts that she initiated contact prior to February 13, 2020 by contacting multiple members of the Agency’s EEO staff to file a complaint. Complainant states that the December 30, 2019 letter did not indicate that she was terminated. Complainant also asserts that a named EEO official directed her to submit a FOIA request if she wanted more information on the December 30, 2019 letter. ANALYSIS AND FINDINGS Claim (1) EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 3 While the Agency stated that Complainant asserted that she had contact with the EEOC in January and February 2020, the record reflects that Complainant appears to be alleging the contact was with the Agency’s EEO Office (rather than the EEOC). 2021002280 4 The Agency improperly dismissed claim (1) for untimely EEO Counselor contact. In an attachment to her formal EEO complaint, Complainant sets forth that the December 30, 2019 decision resulted in her either being terminated or remaining in a leave without pay status.4 The record before us, on appeal, is devoid of evidence that Complainant has been terminated. We find that Complainant is alleging ongoing discrimination when the Agency issued the December 30, 2019 letter finding her not suitable for employment with the Agency which resulted in her remaining in an ongoing leave without pay status.Thus, we find that Complainant is alleging an ongoing claim of a denial of a reasonable accommodation.5 The EEOC Compliance Manual, Section 2, "Threshold Issues,” EEOC Notice 915.003 (May 21, 2005), provides that because an employer has an ongoing obligation to provide a reasonable accommodation failure to provide such accommodation constitutes a violation each time the employee needs it. Even assuming arguendo that Complainant’s initial EEO contact date is August 21, 2020 (as set forth by the Agency in its final decision), we find that Complainant’s contact is still timely with respect to claim (1). The Agency’s alleged failure to provide her an accommodation is a recurring violation, because the alleged harm occurs each day (remaining in an ongoing leave without pay status). Claim (2)-Processing of Complainant’s FOIA and Privacy Act Requests The Agency properly dismissed claim (2) for failure to state a claim. Regarding Complainant’s allegations involving the Agency’s processing of her FOIA request, the Commission has determined that it does not have jurisdiction over the processing of FOIA requests since disputes regarding such requests should be addressed through the appropriate FOIA regulations. See Gaines v. Dep’t of the Navy, EEOC Request No. 05970386 (June 13, 1997). The Commission also does not have jurisdiction over the Privacy Act violations. Jurisdiction over alleged violations of the Privacy Act rests exclusively with United States District Courts. See Story v. U.S Postal Serv., EEOC Appeal No. 01953767 (Oct 18, 1995). Accordingly, we AFFIRM the Agency’s final decision dismissing claim (2). However, we REVERSE the Agency’s final decision dismissing claim (1) and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. 4 The December 30, 2019 letter provides, in pertinent part, that: “[a] review of the preliminary processing and/or your background investigation determined you did not meet the suitability standards for FBI employment…this decision does not constitute denial of a security clearance.” 5 To the extent, Complainant is alleging that these events indicate that Complainant is not in compliance with OFO’s Order in EEOC Appeal No. 0120121339, Complainant may file a petition for enforcement with OFO. 29 C.F.R. § 1614.503(a). 2021002280 5 ORDER (E0618) The Agency is ordered to process the remanded claims (claim (1)) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 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. 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. 2021002280 6 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). 2021002280 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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, Director Office of Federal Operations June 3, 2021 Date