0520130030
04-15-2014
Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Request No. 0520130030
Appeal No. 0120102210
Hearing No. 540-2009-00083X
Agency No. BLM050496
DENIAL
Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120102210 (August 20, 2012). 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).
BACKGROUND
In 2000, Complainant and the Agency entered into a settlement agreement, in which Complainant would work half of the time for the Bureau of Land Management in Arizona, and half of the time for the Office of Civil Rights in Washington, D.C. However, the Agency permitted Complainant to remain in Arizona, and perform his Office of Civil Rights duties remotely.
After signing the settlement agreement, Complainant felt that various agency officials were harassing him by restricting his ability to successfully perform his duties in Arizona and attempting to reassign him to Washington, D.C. Eventually, the Agency directly reassigned him to Washington, D.C. When he declined to be reassigned, the Agency removed him.
These actions resulted in three different complaints: a breach of settlement claim regarding the directed reassignment;1 a mixed case regarding the removal;2 and a hostile work environment claim regarding all other matters, which is the subject of this request for reconsideration.
For the hostile work environment complaint, Complainant alleged discrimination on the bases of religion (non-religious), disability (diabetes), age (54), and reprisal for prior EEO activity. He listed about 120 incidents,3 including allegations that management was restricting him from successfully doing his job and attempting to reassign him from Arizona to Washington, D.C.
About two years later after filing the hostile work environment complaint, the Agency dismissed the complaint in June 2007 without conducting an investigation. A year after that, in October 2008, the Commission reversed the Agency's dismissal and remanded the case to the Agency for investigation. EEOC Appeal No. 0120073454 (Oct. 15, 2008).
Complainant requested a hearing before an EEOC Administrative Judge. During this time, he repeatedly requested that the Agency be sanctioned for failing to conduct an adequate investigation, and for dismissing various incidents that comprised his hostile work environment claim. The AJ denied Complainant's motions for sanctions, reasoning that such sanctions would be premature when Complainant now has the opportunity to supplement the record through discovery and the hearing process.
The AJ subsequently issued an order dismissing numerous allegations in Complainant's case. She grouped the remaining 29 incidents into 5 categories.
The case was reassigned to another AJ, who held a hearing in December 2009, and afterwards dismissed several more incidents from Complainant's hostile work environment claim. The dismissed incidents included allegations that officials belittled or berated him as the Telework Program Coordinator, acted coldly or distant towards him, fostered an unsafe work environment, and engaged in wrongdoing.
When the AJ issued a decision, she initially found no evidence of age or disability discrimination. The AJ found Complainant's supporting witness to not be credible, because she had been mentored by Complainant and appeared to be overly critical of management and her testimony overly consistent with Complainant's.
But the AJ did find that the Arizona facility's Associate State Director (Associate Director) and Human Resources Officer retaliated against Complainant, based on his prior settlement agreement in 2000 and his EEO complaint in 2005.
The AJ found that these officials continuously presented obstacles for Complainant to successfully complete his job duties because they were motivated by the belief that Complainant's position was more appropriately contained within Human Resources and his EEO settlement agreement prevented realigning him.
As a result, these officials slowly imposed restrictions on Complainant's accessibility to sensitive information. He had previously had access to the information as the former Personnel Officer and also for several years as the Quality of Work Life Manager. As the Quality of Work Life Manager, Complainant had to gather and analyze employee data about reactions to proposed policies and programs. Yet these management officials restricted Complainant to the information he needed. The Associate Director and Human Resources Officer restricted Complainant's access to the OPF files, altered his status to that of a non-manager, and placed Complainant on a floor away from the majority of employees. His job duties were reviewed several times throughout this time frame, as well as the terms of the settlement Complainant. The AJ found there was a causal connection between his prior EEO activity, the settlement agreement, and restriction of access to information to perform his job.
Although management officials presented testimony explaining the reasons for restricting Complainant's access to the OPF room, HR review, LOTUS notes, and changing his BUS code, they failed to provide any reason why these were suddenly issues that needed to be addressed. For example, Complainant was the Quality Work Life Program Manager for 5 years before management removed his access to the OPF room in 2005.
Looking over these incidents over the short time period they occurred, the AJ found Complainant was subjected to retaliatory harassment from May 2005 through the notification of his reassignment on July 7, 2006.
For non-pecuniary compensatory damages, the AJ awarded Complainant $45,000 because Complainant credibility testified that the stress from work during the relevant time period from May 2005 through July 7, 2006 resulted in anxiety, depression, sleeplessness, and difficulty controlling his blood sugar. The AJ limited the amount of damages to the time period prior to his removal, because the removal was not at issue here. The AJ found that some of Complainant's emotional and physical harm was the result of his removal and the subsequent financial strain, and found it inappropriate to provide any damages relating to Complainant's suffering for his loss of income.
Complainant requested $68,426.09 in attorney's fees. The AJ denied this request, because the attorney's representation concerned Complainant's hearing before the Merit Systems Protection Board and breach of settlement claim. The AJ noted that the final entry for attorney's fees was November 20, 2007, which occurred before the Commission remanded this hostile work environment case to the Agency for investigation.
The previous appellate decision found that Complainant failed to argue on appeal how the AJ erred, and declined to alter the AJ's decision. The previous decision found there was substantial evidence to support the AJ's finding of discrimination and remedies.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
Complainant contends that the previous appellate decision clearly erred in determining that Complainant failed to argue how the AJ erred. He maintains that he submitted a brief, along with a CD containing 1595 items in support of the brief on July 1, 2010. He encloses a copy of the brief and CD.
The brief contends that the Agency mishandled and fragmented Complainant's hostile work environment claim, first by failing to timely begin investigating this complaint for two years, then by erroneously dismissing the complaint, at which point the Arizona facility's director had retired and refused to testify at the hearing. And after the Agency completed its investigation, Complainant again maintains that the investigation was inadequate, and that the AJ erred in dismissing many of his incidents and not allowing him to call several of his witnesses at the hearing.
As a result, Complainant requests that the Commission sanction the Agency.
In addition, Complainant sought additional remedies and relief, including reinstatement to an equivalent position, back pay, reimbursement for taxes paid on withdrawing from his retirement accounts early, attorneys fees and costs, maximum compensatory damages.
Besides the contentions in his original appellate brief, Complainant also maintains that his monetary award should be increased, because all of the monetary award was depleted due to paying federal and state taxes, and a loan to finance attorney services. Therefore, Complainant has made no monetary gain due to pursuing this matter over the past 7 years.
ANALYSIS
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.
We find that the EEOC AJ did not err in declining to sanction the Agency for failing to conduct an adequate investigation, because Complainant had an ample opportunity to engage in discovery and supplement the record with testimony at a hearing.
Nor do we find any clear error in the AJ recharacterizing or dismissing some of the 120 or so alleged incidents of hostile work environment harassment, as originally formulated by Complainant.
We also find that the previous decision did not clearly err, in determining there was substantial evidence in the record to support the AJ's finding of discrimination and awarded remedies. We determine that the AJ's reasons for limiting the award of monetary damages to the relevant period at issue to be sound, because his removal was not at issue in this case. For similar reasons, we find that the AJ appropriately declined to order the Agency to reinstate Complainant, and to award him backpay, and other similar benefits, because again, his removal was not at issue here.
And while Complainant may have felt obligated to pay attorneys fees for other legal matters, we agree with the AJ that awarding attorneys fees would be inappropriate here, because he had no attorney working on his hostile work environment complaint.
Although the previous erred in stating that Complainant did not submit an appellate brief or any specific arguments explaining why the AJ erred, we find that it was not a material error, because after reviewing the submissions, the outcome has not changed.
The decision in EEOC Appeal No. 0120102210 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
If the Agency has not already done so, it is ordered to take the following remedial actions:
1. Within thirty (30) days from the date this decision becomes final, the agency shall pay complainant $45,000.00 in non-pecuniary damages, and $387.21 in pecuniary damages.
2. Within thirty (30) days from the date this decision becomes final, the agency shall pay complainant $1092.31 in costs.
3. Within sixty (60) days from the date this decision becomes final, the Agency shall consider taking appropriate disciplinary action against the responsible management officials for the underlying discrimination. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to EEOC compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the Agency's employ, the Agency shall provide documentation of their departure date(s).
4. Within sixty (60) days from the dale this decision becomes final, the Agency shall provide at least eight (8) hours of EEO training lo all responsible management officials regarding their responsibilities under anti-discrimination laws, with an emphasis on discrimination under Title VII and harassment in the workplace.
5. The Agency shall post the attached notice of discrimination, as described below.
6. As the agency's EEO Director was a responding official in this complaint, the Agency shall continue to take precautions against a conflict of interest when implementing this decision.
7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include detailed supporting documentation of the Agency's payment of compensatory damages to Complainant.
POSTING ORDER (G0610)
The Agency is ordered to post at its Bureau of Land Management, Arizona State Office facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
__4/15/14________________
Date
APPENDIX
Complainant initially alleged hostile work environment harassment on the bases of religion (non-religious), disability (diabetes), age (54), and reprisal for prior EEO activity when:
1. On January 19, 2001, the BLM Arizona Associate State Director (Associate Director) requested to be briefed and provided with Complainant's duties, two months prior to him starting as Associate Director;
2. On June 6, 2001, the Associate Director, during a meeting in his office regarding the telework program, belittled and berated Complainant as the Telework Program Coordinator;
3. On January 23, 2002, the Associate Director, during a meeting in his office regarding the telework program, belittled and berated Complainant as the Telework Program Coordinator;
4. On June 13, 2002, while meeting the incoming BLM Arizona State Director at a reception, the incoming Director acted cold and distance towards Complainant;
5. On July 31, 2002, the Associate Director, during a meeting in his office regarding the telework program, belittled and berated me as the Telework Program Coordinator;
6. Beginning in July 2002, the Director and Associate Director denied Complainant's attendance when Arizona State Office management officials met about the telework program;
7. During the fall of 2002, the Director, Associate Director, and BLM Human Capital Director, attempted to reassign Complainant to Washington, D.C.
8. On December 12, 2002, the Special Assistant to the Director notified Complainant that the Director and Associate Director intended to reassign Complainant to the abolished position, Management Analyst, located in Business and Support Services;
9. On March 10, 2003, the Director and Associate Director arranged a review of the Human Resources Office and attempted to reassign Complainant to Human Resources Office, under the supervision of the Human Resources Officer;
10. On October 4, 2004, the Associate Director, insisted Complainant meet with him in the State Director's conference room and provide him with Complainant's personal copy of the 2000 settlement agreement;
11. On January 25, 2005, the Director and Associate Director denied Complainant access to awards data for analysis;
12. On March 10, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory and retaliatory acts by the Director and Associate Director after Complainant met with the National Human Resources Management Center and disclosed prohibited personnel practices and requesting whistleblower protection.
13. On April 18, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory and retaliatory acts by the Director, Associate Director, Deputy State Director, Acting Human Resources Officer, Director of Human Capital, after he requested to ensure accuracy and inclusion when issuing vacancy announcements;
14. On May 6, 2005, the Associate Director canceled Complainant's USDA Budget training class that was scheduled to begin on May 9, 2005;
15. On May 10, 2005, Complainant requested a copy of the Human Resources Review, disclosed prohibited personnel practices committed by the Director and Associate Director, and requested whistleblower protection;
16. On May 13, 2005, after notifying and disclosing that the facility was unsafe and that the Director and Associate Director were engaged in wrongdoing, Complainant was subjected to ongoing, pervasive, and continual discriminatory and retaliatory acts;
17. On May 20, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory and retaliatory acts after notifying and disclosing to the acting Human Resources Officer the prohibited personnel practices committed by the Director and Associate Director;
18. On May 23, 2005, the Director and Associate Director removed Complainant's staff assistant from assisting him and working with him in his program areas, as reprisal for his EEO activity and whistleblowing activity;
19. On May 31, 2005, the Director and Associate Director removed Complainant's staff assistant from the diversity committee and prevented her from working with him in the area of diversity, as reprisal for his EEO activity and whistleblowing activity;
20. On June 1, 2005, Complainant's staff assistant was denied her request to work with Complainant on the annual June Pride celebration, as well as her request for annual leave to work on this event;
21. On June 3, 2005, the Director, Associate Director, and Acting Human Resources Officer subjected Complainant to ongoing, pervasive, and continual discriminatory and retaliatory acts after notifying the Acting Human Resources Officer of his intention to report wrongdoing to the Inspector General and Office of Special Counsel.
22. On May 12, 2005, Complainant's staff assistant was denied her request to attend with Complainant the Building Bridges training session;
23. On June 16, 2005, Director of the EEO Washington Office denied Complainant from attending mandatory training on the new diversity plan;
24. On Jun 24, 2005, the Director of the Office of Civil Rights, acting outside the scope of her authority, requested Complainant to submit a telework activity log, in addition to weekly activity reports;
25. On July 12, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory and retaliatory acts by the Director, Associate Director, Acting Arizona Human Resources Officer, and Director of the Office of Civil Rights, after Complainant had a meeting concerning the denial of his access to the OPF room;
26. On July 14, 2005, the Acting Human Resources Officer mischaracterized his oral grievance in her written record, leaving out half of the pertinent information;
27. On July 1, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory acts by the Director, Associate Director, Deputy State Director, and Acting Human Resources Officer, after he requested employee separation data for analysis;
28. On July 18, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory acts by the Director, Associate Director, Deputy State Director, and Acting Human Resources Officer, after Complainant requested his copy of the recurring "alpha roster" and was denied access;
29. On July 18, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory acts by the Director, Associate Director, Deputy State Director, and Acting Human Resources Officer, after Complainant requested his copy of the recurring "organizational roster" and was denied access;
30. On July 18, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory acts by the Director, Associate Director, Deputy State Director, Acting Human Resources Officer, and Director of the Office of Civil Rights, after he disclosed acts of waste and abuse of authority to the Office of Inspector General;
31. On July 25, 2005, Complainant was subjected to ongoing, pervasive, and continual discriminatory acts by the Director, Associate Director, Deputy State Director, Acting Human Resources Officer, the Director of Human Capital in the Washington Office, after he requested and was denied access to Arizona Human Resources review;
32. On July 27, 2005, the Director of the Office of Civil Rights instructed Complainant to not include barriers of discriminatory and retaliatory acts in his weekly work reports;
33. On July 29, 2005, the Deputy State Director denied funds to travel to a diversity event in DC;
34. On August 12, 2005, the Acting Human Resources Officer denied Complainant access to separated employee data;
35. On August 19, 2005, the Deputy State Director refused to remove all the barriers Complainant identified to successfully performing his job, including denial of access to OPF room, alpha roster, separation information, organizational roster, budget cuts, lack of management support/reprisal, loss of support, denial of all employee survey request, denial of access to human resources review, continuing practice of website blocking;
36. On September 2, 2006, the Arizona Employee and Labor Relations Specialist and Acting Human Resources Officer canceled Complainant's formal grievance for denial of access to the OPF room;
37. On September 30, 2006, the Associate Director sent Complainant an intimidating email regarding his incomplete mediation sessions and attempted to bully Complainant into signing a settlement agreement;
38. On September 30, 2005, the Human Resources Officer announced that the Quality of Work Life program that Complainant managed belonged to Human Resources;
39. In October 2005, Complainant's new office was placed on the 8th floor, behind the central file room. He was initially to be located on the 7th floor where 90% of the employees were located. The seclusion from October 2005 through December 2006 was a deliberate act of isolation by the Deputy State Director, the Director, and Associate Director;
40. On October 17, 2005, Complainant was denied access to NHRMC review employee comments;
41. On November 2, 2005, the Director of the Office of Civil Rights asked Complainant if he had any interest in moving to Washington, D.C. He indicated that he did not want to move. Eight months later, on July 7, 2006, Complainant was reassigned.
42. On November 18, 2006, Complainant's formal EEO complaint was sent to the Washington EEO Office for processing, against his objections;
43. On November 29, 2005, the Director of the Office of Civil Rights emailed Complainant, stating, "I did not determine the EEO complaint process."
44. On December 2, 2005, Complainant was not given the opportunity to review, surname, and comment on information bulletin AZ 2006-004 prior to its issuance to all Arizona employees;
45. On December 5, 2005, Complainant discovered the Associate Director breached mediation confidentiality, which resulted in a negative and devastating effect on a close long-term personal friendship with a coworker;
46. On December 5, 2005, the Director told lies and slandered Complainant's reputation in a discussion with her staff assistant and Associate Director;
47. On December 13, 2005 Complainant was not given the opportunity to review, surname, and comment on instruction memorandum AZ 2006-008 prior to its issuance to all Arizona employees;
48. On January 24, 2006, Complainant's staff assistant was officially removed from the Quality of Work Life Team by the Deputy State Director, as reprisal;
49. On February 6, 2006, Complainant disclosed to the Director and Deputy Director of the Office of Civil Rights a hostile work environment. As a result, they set up telephonic meetings with Complainant twice a month, but no other actions were taken by them to resolve his unsafe and hostile work environment;
50. On February 10, 2006, Complainant notified the Arizona EEO manager of a hostile work environment and reprisal, but he took no action;
51. On February 23, 2006, Complainant discussed the content and processing of his EEO complaint when he was informed of the EEOC's revisions to time limitations for filing charges of employment discrimination, in light of the Supreme Court's decision in Morgan, but believed that his claims met this criteria;
52. On February 15, 2006, Complainant discovered the Arizona EEO manager slandered Complainant to the Human Resources Officer;
53. On February 18, 2006, Complainant received acceptance letter of his EEO formal complaint, which he had filed 4 months earlier;
54. On February 22, 2006, the Director and Deputy Director of the Office of Civil Rights did not attend a bi-monthly meeting with Complainant;
55. On February 27, 2006, Complainant's supervisor notified him that the Associate Director had changed his performance appraisal critical elements by deleting three components: Diversity/EEO obligations, Merit System Principals, and Safety and Occupations Health obligations;
56. On March 2, 2006, the Human Resources Officer denied Complainant access to human resources review;
57. On March 13, 2006, Complainant requested an expedited investigation of his hostile work environment claim, but he never received any response or communication from anyone.
58. On March 13, 2006, the Human Resources Officer berated Complainant regarding the wellness program to the state-wide representatives at the quarterly human Resources Development Committee;
59. On March 16, 2006, an official notified another official that it may be a conflict of interest for an office to process Complainant's EEO complaint, but the decision to handle it stood;
60. On March 16, 2006, Complainant was not given an opportunity to review, surname, and comment on the IM, AZ 2006-002 office dress standards prior to its issuance to all Arizona employees;
61. On March 20, 2006, the Human Resources Officer removed Complainant as a manager from Lotus Notes Group Listing;
62. On March 22, 2006, the Deputy State Director showed up to a meeting without notification and was negative and intimidating during the entire monthly meeting;
63. On March 28, 2006, an individual suggested Complainant have other employees escort him from the garage to his office upon arrival and leaving, because she was concerned for his safety;
64. On March 31, 2006, a retiring individual told Complainant the reason why his office was located behind the file room was for his safety;
65. On April 7, 2006, Complainant notified the Director and Deputy Director of the Office of Civil Rights the workplace was too intolerable and that all his requests for help were ignored. Complainant never received any type of response to his pleas.
66. On April 14, 2006, the Human Resources Officer took Complainant's personal original request for leave and personal medical records under false pretenses from the timekeeper. He set up a file on me that he maintains in his office.
67. On April 15, 2006, the Human Resources Officer directed Complainant to provide him with more specific medical information from his physician to document his approved absence from the workplace on FMLA;
68. On May 8, 2006, an employee was given a letter of reprimand for sharing information Complainant requested about the Director;
69. On May 11, 2006, Complainant notified the Human Resources Officer of wrongdoing by the Director and Deputy Director of the Office of Civil Rights, the Director, and Associate Director, and of their breach of the EEO settlement agreement. He took no action and ignored Complainant's disclosure.
70. On May 13, 2006, the Human Resources Officer threatened to charge Complainant with LWOP and administrative action;
71. On May 13, 2006, Complainant notified the Director and Deputy Director of the Office of Civil Rights of his medical condition status and requested facilitation of supervisor reporting relationship. His request that they had agreed to in February was ignored.
72. On May 20, 2006, Complainant received a threatening letter at his home from the Human Resources Officer during his FMLA absence;
73. On May 20, 2006, Complainant notified the Director and Deputy Director of the Office of Civil Rights that he had been released to return to duty and requested supervisory negotiations facilitation. He was ignored.
74. On June 12, 2006, Complainant never received any notification regarding whether his leave of absence was approved or disapproved;
75. On June 13, 2006, the Human Resources Officer emailed Complainant, berating him and the telework program.
76. In June 2006, the Arizona Privacy Act and FOIA Program Manager stated that the Associate Director was engaging in a "tit for tat" with Complainant because of his October 4, 2004 meeting with him. She believed that the Associate Director denied Complainant access to information for Complainant to perform his job because the complainant did not want to share the contents of his personal copy of the settlement agreement with him.
77. On June 16, 2006, several management official had a conference call about Complainant and planned on how to "deal" with him.
78. On June 28, 2006, Complainant filed an amendment to his complaint;
79. On June 28, 2006, Complainant received a phone call stating his employment status had been changed to Washington, D.C. He was told someone else would be contacting him, but that person never did.
80. On July 1, 2006, Complainant received an amended acceptance letter;
81. On July 5, 2006, Complainant received an email about his complaint and investigation, but he wanted the emailer to recuse herself because she was named in the complaint;
82. On July 7, 2006, the Deputy State Director denied Complainant's request to meet with her about reprimanding an employee for sending Complainant a copy of an email.
83. On July 7, 2006, the Human Resources Officer hand-delivered a letter that reassigned him to Washington, D.C.
84. On July 7, 2006, the Human Resources Officer told Complainant that the Deputy State Director was now his supervisor;
85. On July 7, 2006, the Human Resources Officer emailed those with a need to know that he had delivered the notice of reassignment to Complainant;
86. On July 7, 2006, Complainant tried to speak to the Director of the Office of Civil Rights about his reassignment. She told him she knew about it, but could not talk with him about it until July 14, 2006;
87. On July 10, 2006, Complainant amended his complaint to include the reassignment;
88. On July 10, 2006, Complainant was notified that the additional issues could be investigated and did not need to be counseled;
89. On July 11, 2006, the Human Resources Officer emailed Complainant, telling him that Complainant should request leave from the Deputy State Director now, instead of the Associate Director. The Human Resources Officer deliberately deleted the part of the string message where the Associate Director had already approved Complainant's leave request.
90. On July 13, 2006, it was "coincidently" announced in an EEO managers meeting that settlement agreements do not live in perpetuity.
91. On July 13, 2006, Complainant emailed the Human Resources Officer, as well as other management officials, about his February 11, 2000 settlement agreement and his belief that the agency was breaching that agreement. No one responded to this email.
92. On July 14, 2006, the Deputy State Director denied funding for requested training until Complainant accepted or declined the reassignment to Washington, D.C.
93. On July 14, 2006, Complainant was notified that he had until July 22, 2006 to accept or decline the reassignment to Washington, D.C.
94. On July 14, 2006, Complainant discovered that the Human Resources Officer had removed Complainant's name from the list of Arizona managers.
95. In July 2006, Complainant was notified that the Human Resources Officer had snatched Complainant's role as Chief Negotiator for the Collective Bargaining Agreement without Complainant's knowledge;
96. On July 17, 2006, an official from the Office of Inspector General denied Complainant protection for whistleblowing, going so far as to state his office was not a whistleblowing office.
97. On July 17, 2006, Complainant was notified that the facility did not participate in June pride during Complainant's FMLA absence;
98. On July 17, 2006, the Director of the Office of Civil Rights did not call Complainant, even though she was scheduled to call him about the reassignment and she was in the Phoenix area;
99. On July 19, 2006, the Human Resources Officer had Complainant's OPF sent to him, and another official had it when counseling Complainant on discontinued retirement benefits;
100. On July 21, 2006, Complainant emailed the Director and Associate Director
about their involvement with reassigning Complainant to Washington, D.C., and they ignored Complainant's message.
101. On July 21, 2006, Complainant emailed the Human Resources Officer that his
involvement in Complainant's reassignment was disturbing and a violation of his EEO settlement agreement. He responded with a berating message.
102. On July 24, 2006, Complainant discovered the Human Resources Officer had
retrieved Complainant's OPF, in violation of the 2000 settlement agreement.
103. On August 2, 2006, the Director of the Office of Civil Rights denied
Complainant's request to attend a human capital training conference.
104. On August 2, 2006, the Deputy State Director denied Complainant's request to
attend a human capital training conference.
105. On August 3, 2006, the Chief of Procurement confirmed to another employee
that Arizona management officials were orchestrating reprisal actions;
106. On August 4, 2006, Complainant emailed the Deputy State Director on her
involvement in his reassignment, but she ignored his email.
107. On August 4, 2006, Complainant emailed the supervisor of the Chief of the
Office of Civil Rights, disclosing the 9 breaches of his EEO settlement agreement, but this person never responded and ignored his email.
108. On August 4, 2006, the Deputy State Director started signing Complainant's
time sheets for the first time, in violation of the 2000 settlement agreement.
109. On August 4, 2006, the Associate Director responded to Complainant's July 21,
2006 email by telling him, because Complainant as in the process of redress, withheld comment on management's involvement in the reassignment to Washington, D.C. H told Complainant to file a breach of settlement claim.
110. On August 7, 2006, Complainant filed a denial of due process complaint on the
2000 settlement breach.
111. On August 11, 2006, the Human Resources Officer emailed Complainant stating
he would not restore Complainant's status as a manager.
112. On August 11, 2006, Complainant sent the second-level supervisor of the
Director of the Office of Civil Rights, his breach of settlement agreement claim, but he never heard from this person.
113. On August 15, 2006, Complainant disclosed wrongdoing to the Agency's law
enforcement service, but he never received a response.
114. On August 24, 2006, an individual emailed Complainant and a group of
employees, fearing management would retaliate against her for being involved with Complainant;
115. On August 25, 2006, Complainant was deliberately excluded from a meeting
with union representatives, even though Complainant was management's chief negotiator;
116. On September 1, 2006, Complainant was notified that another official never
responded to her regarding Complainant's EEO complaint filed against the Director and Deputy Director of the Office of Civil Rights.
117. On September 1, 2006, the Human Resources Officer denied Complainant's
request to reassess his bargaining unit status code.
118. On September 25, 2006, the Human Resources Officer told Complainant he is
maintain a file on me in a file cabinet in his office. One of the documents was confidential medical records Complainant had submitted to the Director to substantiate his FMLA absence.
119. On December 4, 2006, the Human Resources Officer handed Complainant a
final salary clearance report, form 1340. The forms are for separating employees. He stated he did not know who would be processing Complainant's removal.
120. On December 6, 2006, the Deputy State Director came to Complainant's office
with a subordinate to ensure he left the building before he was able to finish clearing his station.
121. Complainant never received a performance appraisal for FY 2006 and 2007;
122. Complainant never received a mid-term performance review for FY 2006;
123. Complainant never received any communication initiated by the Director from
March 31, 2006 to December 5, 2006;
124. Complainant never received any communication initiated by the Associate
Director from March 31, 2006 to December 5, 2006, except for his email stating he would not respond to an inquiry about his involvement in the reassignment.
125. Complainant has not received any communication initiated by the Deputy State
Director from March 31, 2006 to December 5, 2006, except for a voice message stating she slid his annual performance appraisal under his door and came into his office during his last day of work;
126. Complainant has not received any communication initiated by the Chief of the
Office of Civil Rights from March 31, 2006 to December 5, 2006.
1 In EEOC Appeal No. 0120071379 (Sept. 11, 2008), we found that there was no breach when the agency sought to reassign Complainant for asserted business reasons.
2 In EEOC Petition No. 0320080052 (Sept. 11, 2008), the Commission concurred with a Merit Systems Protection Board Administrative Judge's finding that the removal was not discriminatory.
3 These incidents are listed at the end of this decision, in an appendix.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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