0520180342
07-27-2018
Serita B.,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Serita B.,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.
Request No. 0520180342
Appeal No. 0120150572
Hearing No. 570-2012-00651X, 0570-2013-00295X
Agency No. BEF110781F, BEP-12-0696-F
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120150572 (March 5, 2018). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. � 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
Complainant, a GS-7 Supply Technician at the Agency's Eastern Currency Facility in Washington, D.C., filed an EEO complaint (Agency No. BEP-11-0781-F) alleging she was discriminated against on the bases of race (African American), color (dark complexion) and sex (female), as well as unlawful retaliation, when:
(1) Since June 24, 2009, a Caucasian male coworker ("C1") harassed her on an ongoing basis by following her around the worksite and entering her work area,2 including:
(a) on April 27, 2011, C1 coughed on Complainant as while passing her in the hallway and then referred to her as a "stupid idiot person;"
(b) on August 24, 2011, C1 walked up and down the hallway outside Complainant's work area;
(c) on September 26, 2011, C1 came into Complainant's work area and stared at her; and
(d) on October 27, 2011, C1 came into the area in which Complainant was eating her lunch, supposedly to get his mail.
(2) In 2011, Complainant was denied promotion(s) for which she was due or for which she was otherwise the best qualified applicant.
Complainant filed a second complaint (Agency No. BEP-12-0696-F) alleging additional acts of harassment by C1:
(1) on February 23, 2012, C1 approached her, raised his cane, and hit her twice while yelling at her;
(2) on March 1, 2012, management issued Complainant an "Order of Separation" to maintain at least a 10-foot distance from C1 and to refrain from verbally communicating with him; and
(3) on July 18, 2012, C1 verbally threatened her by angrily stating, "If you tell one more thing on me (sic)."
Complainant timely requested a hearing and the EEOC Administrative Judge (AJ) consolidated both complaints. The AJ found that Complainant failed to establish a connection between the alleged harassment and her race, color, sex, or prior protected activity. As to Complainant's allegation regarding being denied competitive and noncompetitive promotions in 2011, the AJ did not specifically address this issue in her findings other than the statement saying she failed to establish a prima facie case regarding any of the allegations.
Our prior decision found that the AJ erred in deciding the case by summary judgment because, when viewing her harassment allegations in the light most favorable to Complainant, there was an issue of material fact requiring a hearing as to whether there was a nexus between C1's actions and discriminatory animus. The decision noted that Complainant provided evidence of C1's possible racial animus towards African Americans in general and her in particular regarding several incidents. The decision also found Complainant presented evidence of C1's possible retaliatory animus towards her. Finally, the decision concluded that there is a dispute over whether or not the Agency should be held liable for C1's actions based on whether or not its response to the alleged harassment constituted immediate and appropriate corrective action.
In its request for reconsideration, the Agency states it does not contest the remand of the harassment claims for a hearing. However, it does object to the remand of the 2011 non-promotion claim. The Agency argues the merits of the non-promotion claim, stating the undisputed evidence supported summary judgment on that issue. However, we note that the AJ failed to specifically adjudicate the non-promotion claim in her decision. As such, we conclude our initial decision appropriately included that claim in its remand of the harassment claim.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. We agree with the previous decision that the promotion issue was not adequately addressed in the AJ's decision.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120150572 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is directed to submit a copy of the complaint files, along with this decision and our initial decision in EEOC Appeal No. 0120150572, to the EEOC Hearings Unit of the Charlotte District Office within thirty (30) calendar days of the date of this decision. The Agency shall provide written notification to Complainant and the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the hostile work environment and 2011 promotion claims in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0618)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
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
July 27, 2018
__________________
Date
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 The record indicates that before the events at issue, in 2008, C1 had been disciplined and relocated away from Complainant after he kicked a trash can towards her during a verbal altercation.
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