0520090543
12-15-2009
Carlos Torre, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Carlos Torre,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Request No. 0520090543
Appeal No. 0120080228
Hearing No. 451-2007-00180X
Agency No. HS-07-CBP-000966-130104
REQUEST FOR RECONSIDERATION
The agency timely requested reconsideration of the decision in Carlos
Torre v. Department of Homeland Security, EEOC Appeal No. 0120080228
(May 15, 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). For the reasons set forth below, the
agency's request is denied.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Supervisory U.S. Customs and Border Protection Officer, GS-1895-12,
at the Port of Brownsville, Texas. On January 19, 2007, complainant filed
an EEO complaint alleging that he was discriminated against on the bases
of age (54) and reprisal for prior EEO activity when, in November 2006
and March 2007, the agency did not select him for lateral reassignments
to Pre-Clearance in Nassau, the Bahamas.
In a June 9, 2007 addendum to an unsworn declaration, complainant
stated that he "was not involved in a previous EEO, this is my
first." Nevertheless, complainant then declared that he believed the
previous Port Director "did not like me for signing a petition to
remove her from the Port. That is the reason I believe that she would
have a connection on a reprisal against me." Based on complainant's
statement that he "was not involved in a previous EEO," the agency
subsequently dismissed complainant's allegation of discrimination on the
basis of reprisal for prior EEO activity. The agency only accepted for
investigation the allegations that complainant was discriminated against
on the basis of age when he was not selected for lateral reassignments
to Pre-Clearance in Nassau, the Bahamas in November 2006 and March 2007.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. On July 18, 2007, the AJ assigned to the case
issued several orders. One was an "Acknowledgment and Order" indicating
that a party opposing a motion for summary judgment may file a response
within fifteen calendar days of receipt of the motion. Another was an
"Order on Motions for Decision on the Record," which notified the parties
that "motions for a decision on the record" must be received by the AJ
no later than August 31, 2007, and responses must be received no later
than September 5, 2007.
On August 27, 2007, the agency filed a motion for issuance of a decision
without a hearing. When complainant had not responded to the agency's
motion by September 5, 2007, the AJ granted the agency's motion and
issued a decision without a hearing on September 7, 2007. The AJ
assumed, arguendo, that complainant established a prima facie case of
discrimination on the basis of age. The AJ then found that the agency
articulated legitimate, nondiscriminatory reasons for not selecting
complainant, and that complainant ultimately failed to demonstrate
pretext. On October 19, 2007, the agency issued a final order adopting
the AJ's finding that complainant failed to prove that he was subjected
to discrimination.
In its previous decision, the Commission found that the AJ erred in
issuing a decision without a hearing on September 7, 2007, because the
AJ failed to provide sufficient time for complainant to respond to
the agency's motion for a decision without a hearing. In addition,
the Commission noted that complainant indicated that if he had had
sufficient time to respond to the agency's motion, he would have
raised an allegation of a "pattern, practice, and unwritten policy"
of age discrimination at the agency.1 In the previous decision, the
Commission further noted that the AJ should have addressed the basis of
reprisal because complainant had raised it in his formal complaint and
indicated that he had signed a petition to have the Port Director removed
because he believed the Port Director had committed age discrimination.
The Commission determined that there was conflicting evidence over the
real motivation for not selecting complainant, therefore it vacated the
agency's final order and remanded the matter for a hearing.
On request for reconsideration, the agency contends that the previous
decision erred in considering evidence presented for the first time on
appeal, and relied upon evidence not of record to remand complainant's
retaliation claim for a hearing. The Commission finds that the agency's
request meets neither of the criteria for reconsideration, and so denies
the agency's request.
Regarding complainant's claim of discrimination on the basis of
reprisal for prior EEO activity, the Commission notes that the Age
Discrimination in Employment Act prohibits retaliation by an employer
because an individual has engaged in protected activity. EEOC Compliance
Manual Section 8 on Retaliation No. 915.003, 8-1 n.5 (May 20, 1998).
Protected activity includes opposition to any practice made unlawful under
the employment discrimination statutes. Id. at 8-1, 8-3. Examples of
opposition include complaining or protesting to anyone about alleged
employment discrimination. Id. at 8-4.
The record includes complainant's addendum to an unsworn declaration,
which the agency relied upon to dismiss complainant's allegation of
discrimination on the basis of reprisal. Upon review, we determine that
the Commission, in its previous decision, properly found that the AJ
should have addressed the basis of reprisal because (1) it was raised in
the formal complaint, and (2) complainant alleged in his addendum that
he engaged in the protected activity of protesting about employment
discrimination on the basis of age when he signed a petition to have
the previous Port Director removed.
We note the record shows that the AJ prematurely issued a decision
without a hearing on September 7, 2007, before complainant had an
adequate opportunity to respond to the agency's motion. EEOC Regulation
29 C.F.R. � 1614.109(g)(2) provides that the opposing party to a motion
for issuance of a decision without a hearing may file an opposition
within fifteen days of receipt of the motion. See also Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110),
7-14 (November 9, 1999). Here, the agency filed its motion for the
issuance of a decision without a hearing on August 27, 2007. At the very
least, under our regulations, complainant had until September 11, 2007
(fifteen calendar days from August 27, 2007), rather than September 5,
2007, to respond to the agency's motion. Therefore, the Commission's
previous decision properly remanded the claims raised in the formal
complaint for a hearing because the AJ failed to permit complainant
fifteen days to respond to the agency's motion, as required by our
regulations, before issuing a decision without a hearing.
Finally, the Commission finds that the previous decision did not clearly
err with respect to complainant's allegation of a "pattern, practice,
and unwritten policy" of age discrimination. On remand, the AJ assigned
to this case should give complainant the opportunity to request to amend
his complaint to include his hostile work environment claim, as he said
he would have done given adequate time to respond to the agency's motion
for summary judgment. The AJ can then determine whether it would be
appropriate to amend the complaint or to advise complainant to contact
an EEO counselor to file a new complaint on that claim.
CONCLUSION
After reconsidering the previous decision and the entire record, the
Commission determines that the decision in EEOC Appeal No. 0120080228,
as clarified, remains the Commission's decision in this case. 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 (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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, 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 (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 (S0408)
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 (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
December 15, 2009
Date
1 Complainant attached two affidavits from "older" officers to his appeal
to show the existence of a pattern, practice, and unwritten policy at
the Port of Brownsville to openly discriminate against older officers.
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2
0520090543
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0520090543