[Redacted], Mindy O., 1 Complainant,v.Richard Tischner, Director, Court Services and Offender Supervision Agency, Agency.

Equal Employment Opportunity Commission

Dec 9, 2021

Appeal No. 2021004414 (E.E.O.C. Dec. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy O.,1 Complainant, v. Richard Tischner, Director, Court Services and Offender Supervision Agency, Agency. Appeal No. 2021004414 Agency No. CSOSA-EEO-I-21-00006 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 19, 2021, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked as a former Intergovernmental and Community Affairs Specialist (ICAS), GS-12 at the Agency’s Office of Legislative, Intergovernmental and Public Affairs in Washington, D.C. On July 9, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her based on race, sex, and in reprisal for prior protected EEO activity. Specifically, Complainant alleged the following: This claim of “Constructive Discharge” is being submitted as being a like or related claim to the discriminatory, intimidating and harassing conduct that occurred in my current EEOC matter (Case No. EEOC 570-2021-01098x and EEO-I-20-000082). 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. 2021004414 2 1. Since October 2019 and continuing to present, the Agency, by and through its alleged discriminating/responsible management official, Supervisory ICAS, has failed to promote Complainant although the Agency informed Complainant on or about September 20, 2019, during a final performance review that she would be promoted to a GS-13 position; 2. On or about January 2, 2020, Supervisory ICAS informed Complainant that she would be promoted, but Complainant was not promoted (promotional justification letter is dated and signed January 2, 2020); 3. On or about April 17, 2020, the Associate Director informed Complainant that he would be discussing pending promotions with the Senior Advisor to the Director, but failed to take action to promote Complainant; 4. On or about May 21, 2020, the Associate Director failed to respond to Complainant’s email regarding a request to meet with the Director of CSOSA about the promotion. This was the fifth emailed attempt sent to the Associate Director regarding this matter (dates 4/17/20, 4/27/20, 4/29/20, 5/11/20, 5/21/20); 5. On or about July 27, 2020, the Director of CSOSA, the Senior Advisor, the Associate Director, and the Supervisory ICAS failed to respond to Complainant’s email requesting a meeting in reference to the promotion. The 2018-2019 Final Performance Review was attached with a rating of 485; 6. On or about July 29, 2020, the Director of CSOSA, the Senior Advisor, the Associate Director, and the Supervisory ICAS failed to respond to Complainant’s email requesting a meeting in reference to the promotion. The 2019-2020 Final Performance Review was attached with a rating of 500; 7. On or about August 31, 2020, the Director of CSOSA failed to respond to Complainant’s email requesting a meeting in reference to the promotion, which was sent under the advertisement of Supervisory ICAS who was blind copied on this request; 8. On or about September 1, 2020, the Supervisory ICAS informed Complainant that representatives from the Office of Director demanded she refrain from contacting the Office any longer regarding the GS 13 career ladder promotion. This behavior was also subjected to another African American female employee; and 9. On or about October 1, 2020, Complainant emailed Supervisory ICAS and the Associate Director and informed them she was resigning from her position with the Agency. Based on the harassment, intimidation and threats received 2021004414 3 from the Office of the Director, Complainant felt she had no choice but to leave the agency she was employed at for five years (October 2015 - November 2020) and select outside employment which began on a later date. In its July 19, 2021 final decision, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined that Complainant previously raised a constructive discharge allegation as an amendment to a prior complaint, Agency No. CSOSA- EEO-I-20-00082 (EEOC Hearing No 570-2020-01098X), which was pending assignment to an EEOC Administrative Judge (AJ). The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed the formal complaint for raising the same matter that was previously raised in a prior complaint (Agency No. CSOSA-EEO-I-20-00082; EEOC Hearing No 570-2020-01098X). The record reflects that on July 8, 2021, Complainant submitted a request to amend her prior complaint to include a constructive discharge claim in support of her other claims alleging that: (1) she was not promoted from October 2019 - November 2020; (2) she was told in September 2020 to refrain from contacting the office regarding the GS 13 promotion; and (3) she was denied a performance award in October 2020. We note that Complainant raised the same claims in the instant complaint. We further note that there is no indication whether Complainant’s request to amend her prior complaint has been accepted. Our records indicate that the matter is still pending before an EEOC AJ. Therefore, we find that the Agency properly dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION The Agency’s final decision dismissing the formal complaint on the ground discussed above is AFFIRMED. 2021004414 4 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). 2021004414 5 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 December 9, 2021 Date