U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kesha Y.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 2019002721
Agency No. FBI-2018-00285
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated December 11, 2018, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
The instant matter has an extensive procedural history. During the period between 2006 and
December 4, 2009, Complainant worked as a Security Specialist in the Records Management
Division (RMD) of an Agency facility in Winchester, Virginia. On July 27, 2018, Complainant
filed a formal complaint alleging that the Agency discriminated against her on the bases of
disability (Cerebral Palsy, Thyroid Disease, Fibromyalgia, and Osteoarthritis) and reprisal for
prior protected EEO activity (prior favorable EEOC decision) when it failed to reinstate her to a
position suitable for her medical conditions with reasonable accommodation and failed to pay
her back-pay, consistent with a prior final agency decision.
In its December 11, 2018 final decision, the Agency dismissed the instant complaint pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
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.
20190027212
The Agency stated that a formal complaint alleging noncompliance with an EEOC decision fails
to state an independent claim of discrimination. The Agency stated that the appropriate
mechanism to allege noncompliance with an EEOC decision is to file a petition for enforcement
with the Commission.
The record reveals, on July 20, 2009 (subsequently amended), Complainant filed a formal EEO
complaint alleging, between May 2007 and December 2009, the Agency discriminated against
her on the bases of disability and reprisal as to work assignments, performance evaluations, non-
selections, reasonable accommodation, removal from employment, and unemployment benefits.
The Agency identified the complaint as Agency No. FBI-2009-00219. Following an EEO
investigation and informing Complainant of the right to request a hearing before an EEOC
Administrative Judge, the Agency issued a final decision dismissing a portion of the complaint
and finding no discrimination as to the remainder. Complainant filed an EEOC appeal of the
final agency decision, which the Commission docketed as EEOC Appeal No. 0120121339.
In a decision dated May 8, 2015 for EEOC Appeal No. 0120121339, the Commission found that
the Agency denied Complainant reasonable accommodation, terminated her employment, and
subjected her to hostile work environment harassment based on disability and reprisal. In
pertinent part, the Commission ordered the Agency to offer Complainant reinstatement to the
position of Records Conversion Technician at its RMD facility in Winchester, Virginia or a
substantially equivalent or agreeable position, with reasonable accommodation and back-pay.
Subsequently, the Agency requested reconsideration of the decision for Appeal No. 0120121339.
The Commission docketed the Agency request as EEOC Request No. 0520150404 and, in a
decision dated November 12, 2015, denied the request and reiterated the prior remedial order.
On May 25, 2016, the Commission docketed a petition for enforcement from Complainant as
Petition No. 0420160012. In the petition, Complainant asked the Commission to direct the
Agency to provide reasonable accommodation by reinstating her to a position that was
reasonably equivalent to one she lost in a field office and in an office with a nurse on staff. In a
decision dated October 3, 2017 for EEOC Petition No. 0420160012, the Commission found that
the Agency established it was in “full compliance” with the Orders in 0120121339 and
0520150404. The Commission denied Complainant’s petition.
The instant EEO complaint followed. Complainant acknowledged that she accepted a Records
Conversion Technician position but stated, after engaging in the interactive process, it was
determined that she could not perform the position’s duties. Complainant stated that she has
applied for numerous positions for which she is qualified, and the Agency has failed to reinstate
her. She alleged instead the Agency placed her in leave without pay status without a position
and that this matter goes beyond the prior decisions.
ANALYSIS AND FINDINGS
We find that the instant matter is properly dismissed by the Agency for failure to state a claim in
accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1).
20190027213
The Commission finds that the complaint fails to state a claim under EEOC regulations because
Complainant failed to show that she suffered harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
A review of the record before the Commission indicates that Complainant continues to raise
concerns that the Agency failed to implement the previous Order of the Commission.
Complainant argues that the Agency failed to reinstate her to a position suitable for her medical
conditions with reasonable accommodation (an office with a nurse on staff) and failed to pay her
back-pay. Summarily, Complainant alleged that the Agency failed to comply with the
Commission’s Order in EEOC Appeal No. 0120121339 and EEOC Request No. 0520150404.
We appreciate Complainant's frustration with the Agency's alleged failure to fully comply with
the previous Order of the Commission. The appropriate remedy, however, is not to file a separate
complaint of discrimination but to seek enforcement of our prior Order. Commission records and
Complainant's previously filed complaints indicate that Complainant sought enforcement of the
Order previously (in EEOC Petition No. 0420160012) and her petition was denied.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507.
20190027214
In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R.
§ 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal
Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also
include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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. 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 10, 2019
Date
