0520110647
02-09-2012
Genise A. Pennant, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Genise A. Pennant,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Request No. 0520110647
Appeal No. 0120112602
Hearing No. 402-2010-00057X
Agency No. 8J0V09007
DENIAL
The Agency timely requested reconsideration of the decision in Genise
A. Pennant v. Dep’t of the Air Force, EEOC Appeal No. 0120112602
(July 19, 2011). 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.
BACKGROUND
Complainant worked as a Contract Specialist at the Agency's Hurlburt Air
Force Base facility in Florida. On June 24, 2009, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination
on the bases of race (Black) and sex (female) when, on May 29, 2009,
Complainant was issued a performance evaluation where she was rated
as “Slightly Above Fully Successful” in six Appraisal Factors and
“Fully Successful” in three Appraisal Factors.
Complainant initially requested a hearing before an EEOC Administrative
Judge (AJ). The AJ raised some concerns about whether she had
jurisdiction over the complaint. Following discussions, on December 13,
2010, Complainant emailed the AJ, rescinding her request for a hearing
in favor of a final Agency decision. On the same day, December 13,
2010, the AJ issued an order to the Agency remanding the complaint for
a final Agency decision (FAD).
Complainant contacted the AJ on April 8, 2011, in an attempt to establish
the AJ's jurisdiction over the complaint and a default judgment in her
favor. The AJ responded to Complainant on April 11, 2011, stating that
due to Complainant's voluntary request for dismissal, the AJ no longer
had jurisdiction over the complaint. The AJ noted that the Agency should
have issued its FAD.
On April 11, 2011, Complainant appealed to the Commission, indicating
that the Agency had not yet issued a FAD and was stalling her complaint.
She requested sanctions against the Agency over its conduct at the
hearing stage and for failing to timely issue a FAD.
While the appeal was pending, the Agency issued a FAD on May 27, 2011.
The Agency submitted a complaint file, which the Commission processed on
or around June 29, 2011. It did not contain a copy of the FAD, however.
On July 19, 2011, the Commission also processed the Agency’s appellate
brief, which indicated that it had issued a FAD, but again, did not
include a copy of the actual decision.
The Commission issued its decision on July 19, 2011, finding that the
appeal was premature because the Agency had not taken final action
regarding Complainant’s claim of discrimination. The Commission
remanded the matter to the Agency and ordered it to issue a final
decision.
After the Commission issued its decision, it received a second complaint
file from the Agency in September 2011, with a copy of the FAD.
ANALYSIS AND FINDINGS
In its request for reconsideration, the Agency argues that the previous
decision clearly erred in remanding the matter to the Agency because (1)
it issued a FAD in May 2011; (2) it included a copy of the FAD with the
original record; (3) it mailed a copy of the FAD to Complainant on June
3, 2011; and (4) it submitted a brief on June 13, 2011, indicating that
it had issued a FAD.
Upon review, we find that the Agency’s request for reconsideration
fails to show that our previous decision involved a clearly erroneous
interpretation of material fact or law, or that it would have a
substantial impact on the policies, practices, or operations of the
Agency. At the time that the Commission issued its previous decision,
the Commission did not possess a copy of the FAD to verify to its
satisfaction that the Agency had indeed issued one.
Notwithstanding the above, the Commission finds that, in light
of the confusion created by the Agency’s issuance of a FAD while
Complainant’s initial procedural appeal was already pending, and in
the interest of fairness, we will reopen this matter on our own motion
and will VACATE our prior decision and the May 27, 2011 FAD. Also, we
will REMAND this matter to the Agency to reissue its FAD, thereby giving
Complainant full appeal rights, pursuant to 29 C.F.R. 1614.110(b).
This will allow both Complainant and the Agency a full and fair
opportunity to raise and address all arguments, whether procedurally
related or concerning the merits of the FAD’s findings and legal
analysis. We decline at this time to adjudicate the procedural issues
raised by Complainant in her original appeal, and instead will allow her
the opportunity to raise all issues on appeal, once the Agency reissues
the FAD.
CONCLUSION
The Commission VACATES its decision in EEOC Appeal No. 0120112602 and
the Agency’s May 27, 2011 final decision and REMANDS this matter to
the Agency, in accordance with this decision and the Order below.
ORDER (C0610)
The Agency is ordered to reissue to Complainant its final decision
within 30 calendar days of its receipt of this decision, pursuant to 29
C.F.R. § 1614.110. The Agency is further directed to submit a copy of
the reissued decision as part of its report of compliance, as provided in
the statement entitled “Implementation of the Commission's Decision.”
The report shall include supporting documentation verifying that the
ordered action has been implemented.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)
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 (R0610)
This is a decision requiring the Agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (Z0610)
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
____2/9/12______________
Date
2
0520110647
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110647