0120180724_0120181492
05-14-2018
Abe K,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (U.S. Marshals Service & (Executive Office of the U.S. Attorneys), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abe K,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(U.S. Marshals Service &
(Executive Office of the U.S. Attorneys),
Agency.
Appeal Nos. 0120180724 & 0120181492
Agency No. USM-2017-01061 & USA-2018-00146
DECISION
Complainant filed two timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from final agency decisions ("FADs") dated November 30, 2017 (Agency No. USM-2017-01061 - Appeal No. 0120180724, filed December 12, 2017), and dated March 14, 2018 (Agency No. USA-2018-00146 - Appeal No. 0120181492, filed March 26, 2018), dismissing his two complaints alleging 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.
As the two complaints concern the same underlying facts, we exercise our discretion to consolidate this matter for a single decision. See EEOC Regulation 29 C.F.R. � 1614.606.
BACKGROUND
At the time of events giving rise to his complaints, Complainant was employed by a staffing firm serving the Agency as a Special Security Officer (SSO) at the United States Attorney's Office, Eastern District of New York in Brooklyn, New York. According to the equal employment opportunity (EEO) counselor, Complainant indicated he was occasionally required to go to the U.S. Courthouse if that location was short-staffed.
In his two complaints, Complainant alleged that two Agency subcomponents, the U.S. Marshal's Service (USMS) and the Executive Office of the U.S. Attorneys (EOUSA), discriminated against him based on disability (color vision deficiency) when, following a March 11, 2015 determination by Federal Occupational Health (FOH), which services both USMS and EOUSA, that he was not medically qualified for his position because he did not meet the Agency's color vision standard, he was terminated from his position on March 23, 2015. Complainant contends that he was removed because he was medically disqualified by the Agency.
Citing 29 C.F.R. � 1614.106(a), USMS dismissed Complaint 1 because Complainant did not file his complaint with the agency that allegedly discriminated against him. It reasoned that Complainant served under a contract funded by EOUSA, not USMS. It found that EOUSA had a direct interagency agreement with FOH, not an indirect relationship with FOH through USMS.
EOUSA dismissed Complaint 2 because it stated the same claim as Complaint 1, which had already been dismissed and was pending appeal with the EEOC. 29 C.F.R. � 1614.107(a)(l). EOUSA found that while Complaints 1 and 2 were filed with different subcomponents (USMS or EOUSA), both complaints were against the same Agency - the Department of Justice.
The instant appeals from Complainant followed. Complainant argues that while USMS would have the Commission believe that it was completely removed from the process by which his medical paperwork was reviewed and the determination made on his medical fitness, this is at odds with its written solicitation under which the staffing firm provides its services. The solicitation provides that USMS has interagency acquisition agreements (IAA) with other federal agencies under which those performing security officer services are generally designated as SSOs. The solicitation provides that services ordered under an IAA must be in full compliance with the solicitation. Section C.9 mandates physical and medical standards which include ability with vision to distinguish basic colors and shades of color, an annual medical examination, and FOH review of the medical examination paperwork for a medical qualification determination. Complainant argues that Complaints 1 and 2 should be consolidated and remanded for processing.
ANALYSIS AND FINDINGS
Complainant argues that Liz M. v. Department of Justice, EEOC Appeal Nos. 0120162835 and 0120170199 (Feb. 2, 2017) applies here. We agree. The facts in Liz M. are strikingly similar to this case. In Liz M., a complainant worked for a staffing firm serving the Agency as an SSO and was terminated by her staffing firm after FOH, an Agency agent, denied her a medical clearance based on her disability. The complainant in Liz M. filed EEO complaints with USMS and EOUSA. Like here, USMS dismissed, citing 29 C.F.R. � 1614.106(a). It found that the complainant did not file her complaint with the agency that allegedly discriminated against her - rather the complainant served under a contract funded with oversight by EOUSA. Like here, EOUSA separately dismissed its complaint. In Liz M., we found that the complainant was essentially alleging that two Agency (DOJ) subcomponents, acting either individually or in concert, discriminated against her based on her disability when she was denied a medical clearance to work as an SSO, resulting in her termination. The same is true here. In Liz M., we consolidated the complaints. We found that the Department of Justice, through its agent FOH, denied the complainant's medical clearance which caused her termination, and ordered it to process the consolidated complaints and address the complainant's claims against both USMS and EOUSA.
Here, USMS suggested to Complainant in its FAD that the proper employer to file his EEO complaint with was EOUSA, but after he did so, EOUSA dismissed Complaint 2 because he previously filed Complaint 1 with the same claim with the other subcomponent of the Agency. This is a catch-22. As found by EOUSA, while Complaints 1 and 2 were filed with different subcomponents (USMS or EOUSA), both complaints were against the same Agency - the Department of Justice. As in Liz M., the Department of Justice must process Complaints 1 and 2 as a consolidated complaint.
The FADs are REVERSED.
ORDER
The Agency is ordered to process the remanded consolidated complaints in accordance with this decision and 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded consolidated complaints within thirty (30) calendar days of the date this decision was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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.
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. 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 (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 (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
May 14, 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.
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0120180724 & 0120181492