0120150567
12-30-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120150567
Agency No. 146710002852
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 22, 2014, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed at the Agency's Marine Depot Maintenance Command in Barstow, California.
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic), sex (male), color (Brown), and/or age (44) when he did not receive an 8-hour time-off award during the FY 2013 award period.1
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(9), for misuse of the EEO process. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC regulations allow an agency to dismiss a complaint where it is part of a clear pattern of misuse of the EEO process for a purpose other than the prevention and elimination of employment discrimination. Specifically, 29 C.F.R. � 1614.107(a)(9) states:
A clear pattern of misuse of the EEO process requires:
(i) Evidence of multiple complaint filings, and
(ii) Allegations that are similar or identical, lack specificity or involve matters previously resolved, or
(iii) Evidence of circumventing other administrative processes, retaliating against the agency's in-house administrative processes or overburdening the EEO complaint system.
As a policy, the Commission aims at preserving a complainant's EEO rights whenever possible and we rarely permit dismissal of a complaint for misuse of process. See Kessinger v. United States Postal Service, EEOC Appeal No. 01976399 (June 8, 1999); Equal Employment Opportunity Commission, Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 5, � IV.A.4 (Nov. 19, 1999). Given this policy for protecting complainants and their rights under the EEO statutes, an agency bears a very high burden of proof to establish that a complainant's actions reveal "an ulterior purpose to abuse or misuse the EEO process." MD-110 at Ch. 5, � IV.A.4.
Filing numerous complaints alone is not a sufficient basis for dismissal. The Agency must provide evidence that somehow, in filing numerous complaints, a complainant specifically intended to misuse the EEO process. Compare Wiatr v. Department of Defense, EEOC Appeal No. 01A30752 (February 25, 2004) (finding no abuse of process in the case of a complainant filed over 40 complaints, but the record did not show that he did so for any other reason than to put an end to alleged discrimination); with Abell v. Department of Interior, EEOC Appeal No. 01A33023 (May 13, 2004) (finding abuse of process where complainant filed 40 complaints of non-selection with no intention to take the job). Therefore, the focus of the analysis is on the totality of the individual's claims, circumstances, and intentions.
In its dismissal decision in the instant case, the Agency asserted that Complainant was among 53 employees at the Barstow facility who filed an EEO complaint concerning a denial of a time-off award for the FY 2013 rating period, alleging various bases of discrimination. The Agency further asserted that these complainants did not offer evidence of disparate treatment or reprisal. The Agency concluded that dismissal of all 53 complaints was appropriate because it believed this was "a collective effort to overwhelm the complaint processing system, presenting form charges and appeals with little or no supporting evidence, [and] administrative processing of such complaints would serve no legitimate statutory purpose."
However, we find that the Agency has failed to present evidence to meet its burden of proving misuse of the EEO process. While 53 employees, including Complainant, each filed a complaint2 over the awards program, there is simply no evidence presented that these filings were motivated by anything other than a desire to prevent disparate treatment with regard to those awards. Moreover, there is no evidence other than the Agency's speculation that there was a collective effort among the 53 complainants in this case to overwhelm the EEO complaint processing system. See Chapa v. United States Postal Service, EEOC Request No. 05870406 (May 27 1988) (misuse of process dismissal limited to exceptional circumstances such as Chapa where the evidence showed that nearly 1,000 EEO complaints were filed by employees who were instructed by their union, which was engaged at the time with the agency in a contract dispute, to flood the agency's EEO complaint process). Here, the fact that all 53 complainants, who worked in the same facility, were represented by the same union steward is not, by itself, evidence of misuse. In addition, there is no credible argument that these 53 complaints could, in fact, overwhelm the Agency, especially as it may be appropriate for the Agency to consolidate the individual complaints for joint processing pursuant to 29 C.F.R. � 1614.606.
On appeal, the Agency has also argued that Complainant did not offer further evidence of disparate treatment or reprisal, and points to the matrix it developed showing that the 53 complainants were of various races, national origins, ages, religions, both sexes, and both had participated in, or had not participated in, prior EEO activity. We find, however, this argument addresses the merits of the claims raised without a proper investigation as required by the regulations, and is not relevant to the procedural issue of whether or not Complainant has stated a viable claim under the anti-discrimination laws VII and the 29 C.F.R. Part 1614 regulations. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). Here, Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (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
December 30, 2014
__________________
Date
1 We note that Complainant attempted to later amend the complaint to add an Equal Pay Act (EPA) claim concerning the denial of the time-off award. However, we find this fails to state a claim because this type of performance award does not appear to be "wages" within the meaning of the EPA. See 29 C.F.R. � 1620.10.
2 There is no indication that any one complainant filed more than one complaint.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150567
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120150567