0520090557
10-29-2009
Teresa E. Cowan, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Teresa E. Cowan,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520090557
Appeal No. 0120070907
Hearing No. 451-2006-00091X
Agency No. HS-05-CBP-002529
DENIAL
The agency timely requested reconsideration of the decision in Teresa
E. Cowan v. Department of Homeland Security, EEOC Appeal No. 0120070907
(May 14, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
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(b).
In the appellate decision, complainant filed an EEO complaint alleging
that she was discriminated against on the bases of race (Hispanic),
national origin (Mexican) sex (female), age (over 40 years old), and in
reprisal for prior protected EEO activity under Title VII when: (1)
on April 6, 2004, the agency failed to select her for the position of
Supervisory Inspector (Passenger Processing); (2) on or about April 18,
2005, the agency failed to select her for the position of Supervisory
CBP Officer (Assistant Port Director Trade Operations), GS-1895-13;
(3) she was subjected to harassment, citing a number of incidents
occurring during the period June 2004 through July 2005; and (4) with
regard to her EEO complaint, in that she alleged that the agency's EEO
officials are intent on dissuading or squelching EEO complaints, offer
half-truths and incomplete information in bad faith in order to appease
or discourage complainants, fail to counsel on EEO laws and guidelines,
aside from sending the forms and advising to sign, carry the complaint to
the person being complained against which gives that person an opportunity
for creating plausible deniability, and specifically, that they denied
her the use of official time.
In a letter dated November 12, 2005, the agency dismissed claims 1,
3, and 4, and accepted claim 2 for investigation. A hearing was held
before an EEOC Administrative Judge (AJ) regarding claim 2. The AJ found
that complainant failed to prove that she was discriminated against.
The agency issued a final order adopting the AJ's decision. Complainant
appealed the decision to the Commission. The Commission held that with
regard to claim 1, complainant knowingly and willingly withdrew her
previous EEO complaint, and the agency properly dismissed claim 1 on
the grounds that it stated the same claim complainant withdrew in her
previous EEO complaint. With respect to claim 2, the Commission found
that substantial evidence supported the AJ's finding of no discrimination
or reprisal for claim 2. The Commission reversed the agency's dismissal
of claim 3 and found that claim 3 stated a claim of a hostile work
environment. Therefore, claim 3 was remanded to the agency for further
processing. With respect to claim 4, the Commission found that in light
of the facts presented in the instant case and because of our concern
for the integrity of the agency's EEO process, the agency was ordered
to provide complainant with a report of any actions that it took to
resolve her concerns regarding the processing of her complaints, or an
explanation of its reason for not taking action. Finally, with respect
to complainant's further claim that she was denied official time, the
Commission ordered the agency to conduct a supplemental investigation.
The Commission also found that there was no persuasive evidence of
harmful error or abuse of discretion regarding the AJ's ruling on the
discovery requests.
The agency requests a partial reconsideration and asks that the
Commission reconsider its order to have the agency conduct a supplemental
investigation with respect to complainant's denial of official time.
The agency contends that the Commission's decision incorrectly
assumed that the complainant's MSPB appeal was a mixed case appeal.
The agency argues that the denial of official time for complainant, a
management employee, to testify on behalf of the Union in an arbitration
proceeding is not an "appealable agency action." The agency maintains
that complainant's denial of official time had nothing to do with her
nonselection and reassignment complaints. The agency contends that this
action was not "effected in whole or in part, because of discrimination
on the basis of race, color, religion, sex, national origin, handicap
or age." The agency contends that complainant's MSPB appeal simply did
not meet the definition of a mixed case appeal. Moreover, the agency
maintains that complainant's complaint was not timely brought to the
attention of an EEO Counselor, and complainant's attempt to raise it in
an MSPB whistleblower appeal does not save it.
After reconsidering 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(b), and it is the decision of the Commission to deny
the request. The Commission finds that the agency failed to show that the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or that the appellate decision will have a substantial impact
on the policies, practices, or operations of the agency. We note, as
the Commission explained in the appellate decision, that we were unable
to determine from the record whether complainant was denied official time
to attend a hearing regarding an EEO matter and therefore, we ordered
the agency to conduct a supplemental investigation with respect to this
matter. We find that other than the agency's conclusory statements that
this case is not a mixed case complaint, the agency has not provided any
evidence which indicates that the EEOC does not have jurisdiction over
this matter. See Edwards v. United States Postal Service, EEOC Appeal
No. 05960179 (December 23, 1996). Therefore, the decision in EEOC Appeal
No. 0120070907 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 shall undertake the following actions:
1. The agency is ordered to process the remanded claim 3 in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received claim 3 within thirty (30) calendar days of the
date this decision becomes final. 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 becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing on claim 3, the agency shall issue a final decision within sixty
(60) days of receipt of complainant's request.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency official responsible for the quality of complaints
processing must add a record of the complainant's concerns, and any
actions the agency took to resolve the concerns, to the complaint file
maintained on the underlying complaint. Moreover, the agency shall provide
complainant with a report of any actions taken by the agency to resolve
the concerns, or an explanation of its reason for not taking action.
3. The agency is ordered to investigate the issue of whether complainant
was denied official time to attend a hearing related to an EEO matter. In
the investigative record, the agency shall include documentation
indicating whether complainant was granted official time to attend the
hearing. If complainant was denied official time, the agency shall provide
justification for the denial. The agency must also provide complainant
an opportunity to place into the record any evidence supporting her
claim that she was denied official time. Within sixty (60) days from
the date this decision becomes final, the agency shall issue a decision
as to whether or not complainant was properly denied official time. The
agency's decision shall provide appeal rights to the Commission.
A copy of the agency's decision with notice of rights must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
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 (Q0408)
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 filed your appeal with the Commission.
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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 29, 2009
Date
2
0520090557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0520090557