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

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020002977 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxima S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020002977 Agency No. FBI-2017-00363 DECISION On April 2, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 3, 2020, final decision 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues presented are whether the Agency should be sanctioned for allegedly failing to timely investigate Complainant’s formal complaint; and for allegedly failing to timely issue its Final Agency Decision (FAD). 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. 2020002977 2 BACKGROUND At the time of events giving rise to this complaint, Complainant was a retired Special Agent (SA) from the Agency’s St. Louis Division (SLD) in St. Louis, Missouri. On September 26, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (mental), age (47), and reprisal for prior protected EEO activity, which allegedly forced Complainant to retire, when: 1A. from June 2015 to November 2017, a male Special Agent (SA) called Complainant and another female SA names that Complainant felt were derogatory; 1B. an Assistant Special Agent in Charge (ASAC) made remarks that Complainant felt were derogatory about Complainant. The ASAC also allegedly chastised Complainant for speaking to the male SA who had called Complainant names that Complainant felt were derogatory; 1C. management removed Complainant from her position; 1D. an ASAC gave Complainant little time to select a new assignment; 1E. an ASAC chose Complainant’s new assignment and made a remark that Complainant felt was derogatory about her family; and 1F. the new Special Agent in Charge (SAC) made a comment that Complainant felt was insulting to her; 2. on October 17, 2017, the Agency allegedly subjected Complainant to retaliation when management gave Complainant the rating of "excellent” on her annual performance appraisal report (PAR) instead of "outstanding;” and 3. on October 24, 2017, the Agency allegedly subjected Complainant to retaliation when management assigned her as the duty complaint agent the day after Christmas. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. Complainant filed a Motion for Sanctions on May 30, 2018, which was held in abeyance pending the assignment of an AJ. In her motion, Complainant alleged that the Agency failed to timely process her case in accordance with the federal regulations. The Agency filed an objection to Complainant’s motion. On August 26, 2019, Complainant filed a request that the AJ stay all case deadlines until a ruling was issued on the Motion for Sanctions. The request was granted. 2020002977 3 On October 23, 2019, the assigned AJ ruled that sanctions were not warranted. Specifically, the AJ did not find that there was evidence that the Agency’s failure to timely process Complainant’s case was intentional or done in bad faith. Therefore, the AJ ruled sanctions were not warranted. The AJ noted that after Complainant first initiated EEO counselor contact, and after she filed her formal complaint in late September, Complainant submitted several requests to amend her complaint which slowed the processing of the EEO complaint. In addition, the AJ noted, Complainant requested a hearing 24 days after the Agency issued its acceptance letter, which divested the Agency of the authority to continue the investigation. The AJ explained that once a Complainant requests a hearing, the Agency loses jurisdiction over the complaint and same rests with the Commission. On November 5, 2019, Complainant withdrew her hearing request, and requested that a FAD be issued in her case. On November 6, 2019, the AJ dismissed the complaint from the hearing process and remanded the case to the Agency for a FAD. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant asserts that the Agency demonstrated a complete disregard for the Commission’s deadlines throughout its processing of her complaint. Complainant states that, despite her persistent attempts to ensure the Agency timely investigated her complaint, the Agency failed to initiate its investigation until after the deadline for its completion and issued the ROI more than 100 days late. As a result, Complainant argues, sanctions are warranted to protect the integrity of the EEO process and address the Agency’s non-compliance. Complainant requests that the Commission enter default judgment in her favor as a sanction for the Agency’s failure to timely investigate her complaint and timely issue its FAD. We note that Complainant’s contentions on appeal do not address the merits of her claims. In response, the Agency asserts that Complainant’s requested sanctions are unwarranted because it conducted an investigation; completed the ROI; and transmitted the ROI to the Commission, Complainant, and her representative on August 16, 2018. The Agency contends that the ROI was uploaded to FedSEP the day before. Further, the Agency argues that, due to three separate amendments requested by Complainant, it previously sought a 90-day extension that was denied. At the time of the denial, notes the Agency, an Acknowledgment Order had not yet been issued. Such conduct, reasons the Agency, illustrates that it did not engage in repeated and willful disregard of the Commission’s orders. Second, it attempted to interview Complainant, but she declined to provide a sworn statement for the investigation. Third, argues the Agency, a default judgment or any other sanction under the described circumstances does not comport with Commission precedent. The Agency requests that the Commission deny Complainant’s appeal for sanctions and default judgment because the integrity of the EEO process has not been harmed. 2020002977 4 STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See EEO MD-110 at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS We note, on appeal, Complainant’s assertions that a default judgment should be entered in her favor as a sanction against the Agency for improperly processing her complaint. EEOC regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (Jun. 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052, “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. Complainant requested a hearing on the matter and the Agency provided the record to the AJ. Complainant subsequently withdrew her hearing request on November 5, 2019.2 The AJ remanded the matter back to the Agency to issue a final decision on November 6, 2019. The Agency did not issue the FAD until March 3, 2020, 118 days after the AJ’s remand. While we acknowledge that this is beyond the regulatory time limit, we do not find that the instant facts justify the imposition of sanctions. See, e.g. Anthony M. v. Dep’t of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020) (the Agency did not issue its FAD until almost two years after Complainant withdrew his hearing request); Josefina L. v. Soc. Sec. Admin., 0120142023 (Jul. 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the Agency’s 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the 2 Additionally, we observe that Complainant’s hearing request, made 24 days after the Agency issued an acceptance letter in her case, also divested the Agency of jurisdiction over her complaint. 2020002977 5 delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days). The Agency did not act in a manner to warrant a default judgment sanction. We find no evidence that the failure was intentional or done in bad faith, particularly in light of Complainant’s own actions (i.e. multiple requests to amend her complaint, not providing an investigatory affidavit) that contributed to the delay in processing of the complaint. See, Sharon M. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120181425 (Aug. 7, 2019) (“[T]he Commission finds that there is no evidence that the Agency’s delay in this case is attributable to contumacious conduct or bad faith . . . we do not find that either AJ abused their discretion in declining to sanction the Agency for its delay in completing the investigation.”) Further, Complainant has not shown that the late issuance of the FAD resulted in prejudice to her or an unconscionable delay in justice. With respect to the merits of the case, as noted above, Complainant did not raise any contentions on appeal. After a review of the record, we discern no reason to disturb the Agency’s decision. Complainant did not prove, by a preponderance of the evidence, that discrimination occurred as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 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). 2020002977 6 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. 2020002977 7 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 September 21, 2021 Date