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

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2021004538 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thalia B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021004538 Hearing No. 420-2021-00200X Agency Nos. FBI-2021-00132 and FBI-2021-00025 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the final Agency's decision dated July 26, 2021, dismissing her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Intelligence Analyst, Grade GS-13, at the Agency’s Mobile Field Office for Montgomery, Alabama. On April 14, 2020, the Complainant requested a no-cost transfer to a long-term, temporary duty assignment at the Agency’s Mobile Field Office for Dothan, Alabama. Complainant’s reason for this request was to be closer to her elderly mother where Complainant could provide necessary care. 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 2021004538 On April 20, 2020, the Agency denied Complainant’s request. On April 6, 2021, complainant’s co-worker, a staff operations specialist, who was a younger male, requested transfer from the Mobile Field Office for Montgomery to the Mobile Headquarters for Alabama. The co-worker desired to be closer to his fiancée with whom he recently purchased a home in Louisiana. On April 13, 2021, Agency approved the co-worker’s transfer. On April 20, 2021, Complainant contacted an EEO Counselor. The parties did not resolve the matter informal EEO counseling. On May 20, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and age (56). The Agency described the claim as follows: On April 13, 2021, Complainant discovered that a staff operations specialist, who Complainant alleged was younger and male, had his transfer request approved. The Agency dismissed the formal Complaint pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency reasoned that Complainant had stated the same claim that was currently pending or already decided by the Agency in a case identified under Agency No. FBI-2021-00025. The instant appeal followed. On appeal, Complainant contended that the Agency had mischaracterized her claim. Complainant explained that she was being subjected to a generalized pattern of disparate treatment by Agency managers that has continuously harmed conditions of her employment. Complainant argues that her complaint went beyond approval of the coworker who transferred out of the Mobile Field Office for Montgomery. Complainant accused the Agency of unfairly restricting her to work at the Mobile Field Office for Montgomery. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. To be dismissed as the “same claim,” the present formal complaint and prior complaints must have involved identical matters. In order from a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. Jackson v. U.S. Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). As an initial matter, we reject Complainant’s argument that the claim raised in her formal complaint was mischaracterized. A fair reading of pre-complaint documentation, and the formal complaint itself, reflects that Complainant’s focus was upon the denial of a transfer request, as discussed above. 3 2021004538 An examination of the record for Complainant prior EEO complaint (Agency Case No. FBI- 2021-00025), filed on December 4, 2020, shows that in July 2020, the Agency denied Complainant’s April 2020 request for a parental medical hardship transfer. Complainant appealed the denied request to upper level management, but her request was finally denied in October 2020. Complainant filed a formal EEO complaint on or about December 4, 2020 and she requested a hearing before an EEOC Administrative Judge (AJ). On November 22, 2021, the AJ issued a decision by summary judgment on the matter in favor of the Agency. See EEOC Hearing No. 420-2021-0200X. Based on our review, we concur with the Agency in that Complainant had already raised the identical claim to her current complaint in Agency Case No. FBI-2021-00025, and an EEOC AJ has already issued a decision on that complaint in EEOC Hearing No. 420-2021-0200X. By November 2020 at the latest, Complainant had been notified of the Agency’s final denial of her hardship transfer request. Complainant’s learning of a comparator’s identity after-the-fact did not extend her claim so that she could reassert it in early 2021. CONCLUSION The Agency's final decision dismissing the formal complaint for the reasons discussed above 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. 29 C.F.R. § 1614.405; EEO Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). 4 2021004538 Complainant should submit her request for reconsideration, and any statement or brief in support of her request, via the EEOC Public Portal, which can be found at: https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit her request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. NE, Washington DC 20507. In the absence of a legible postmark, 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. 29 C.F.R. § 1614.604. The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request or statement or brief in opposition must also include proof of service on the other party, unless Complainant files 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. 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. 5 2021004538 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 2, 2021 Date