Marybeth C.,1 Complainant,v.Rex W. Tillerson, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 27, 2017

0520170176 (E.E.O.C. Apr. 27, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Marybeth C.,1
Complainant,

v.

Rex W. Tillerson,
Secretary,
Department of State,
Agency.

Request No. 0520170176

Appeal No. 0120142687

Hearing No. 570-2011-00418X

Agency No. DOS-F-111-10

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No.
0120142687 (December 20, 2016). 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(c).

In her underlying complaint, Complainant claimed that she was discriminated against on the
bases of her race (African-American) and national origin (African/Togolese) when she was
demoted to a GS-11 Supervisory Passport Specialist position on April 23, 2010; and when she
was subjected to an ongoing hostile work environment characterized by, but not limited to,
humiliating and degrading comments and behavior. Complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ dismissed Complainant’s demotion claim as a
mixed case complaint, and the Agency was directed to issue a final agency decision and advise
Complainant of her right to file an appeal to the Merit Systems Protection Board (MSPB). The

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.
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AJ granted the Agency’s Motion for Summary Judgment as to Complainant’s harassment
claim.

The Agency issued separate final decisions on June 23, 2014, regarding the two claims. As to
the demotion, the Agency determined that no discrimination occurred and issued Complainant
appeal rights to the MSPB. With regard to the harassment claim, the AJ’s decision was fully
implemented by the Agency in its final decision.

On appeal, the Commission dismissed the appeal. We stated that the Agency provided appeal
rights for the demotion claim to the MSPB, not the Commission. We stated that Complainant
failed to address this mixed case issue.

In her request for reconsideration, Complainant acknowledges that her matter is a mixed case
but maintains that she did not file her appeal with the Commission until after she exhausted
administrative remedies with the MSPB. Complainant states that the MSPB issued its Initial
Decision on October 19, 2011, in her mixed case and it affirmed the Agency’s actions.
According to Complainant, she subsequently petitioned the MSPB for a review of its decision
and on March 29, 2012, the MSPB issued its Final Order.

In response to Complainant’s request for reconsideration, the Agency asserts that the Initial
Decision and Final Order by the MSPB to which Complainant refers concern Complainant’s
termination and not her demotion. The Agency maintains that Complainant never appealed her
demotion to the MSPB. The Agency further argues that Complainant did not appeal its
decision on her harassment claim despite the fact that she addressed this claim in her brief on
appeal. The Agency points out that Complainant attached its final decision regarding the
demotion when she filed her appeal, but not its final decision concerning the harassment claim.

Complainant was provided appeal rights to the MSPB as to her demotion. Upon review of the
record, we agree with the Agency that the matter where Complainant exhausted her
administrative remedies before the MSPB concerned her termination and not her demotion.
Therefore, we find that the previous decision correctly found that Complainant improperly
pursued an appeal regarding her demotion with the Commission rather than the MSPB.
Further, we note that Complainant is not arguing in her request for reconsideration that her
harassment claim is at issue here. Therefore, we will not address that claim in this 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. 0120142687 remains the
Commission's decision. There is no further right of administrative appeal on the decision of
the Commission on this request.

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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

April 27, 2017
Date