Darius C.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Apr 12, 2018

0120161473 (E.E.O.C. Apr. 12, 2018)

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

Darius C.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.

Appeal No. 0120161473

Hearing No. 560-2015-00059X

Agency No. HS-ICE-02253-2013

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) concerning 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 worked as a Supervisory
Immigration Enforcement Agent, 1801 - GS 12 at the Agency’s ICE Air Operations facility in
Kansas City, Missouri.

On October 30, 2013, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of sex (male) and age when he was issued a management-
directed reassignment notification relocating him to Mesa, Arizona, effective May 1, 2014.
Complainant raised a second claim that he was subjected to a hostile work environment in

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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reprisal for protected EEO activity when, from August 28, 2013, and continuing, Complainant
and other employees were negatively referenced in an interoffice email.

The record indicates that eight employees filed identical EEO complaints raising the same
claims. They sought to raise a class action, but on January 17, 2014, an EEOC Administrative
Judge (AJ) found that they failed to meet the criteria for class certification. The Agency fully
implemented the AJ’s decision and processed Complainant’s claim as an individual complaint of
discrimination. The Agency investigated the complaint, and thereafter Complainant requested a
hearing. Complainant subsequently withdrew his request for a hearing, and on August 31, 2015,
the AJ ordered the Agency to issue a final decision on the matter. When the Agency failed to
issue a final order, Complainant filed the instant appeal.

In response to Complainant’s appeal, the Agency admits it has yet to issue a final decision on the
matter.

ANALYSIS AND FINDINGS

The Commission’s regulations at 29 C.F.R. § 1614.110(b) state that when an Agency has
received a request for a final decision without a hearing, the Agency shall issue a final decision
“within 60 days or receiving notification that Complainant has requested an immediate decision
from the Agency.” In the instant case, the AJ remanded the complaint to the Agency for
issuance of a final decision, pursuant to 29 C.F.R. § 1614.110(b), in August 2015. The Agency
admits as of the date of Complainant’s appeal, it has not issued its final decision. To date, the
Agency has provided no additional evidence that it has issued a final decision on Complainant’s
complaint. Pursuant to 29 C.F.R. § 1614.404(c), the Agency is reminded that if it fails to comply
with the Order herein, the Commission may issue a sanction against it that could include a
decision in favor of Complainant.

CONCLUSION

Accordingly, we are remanding the matter to the Agency for issuance of a final decision. The
Agency shall comply with the ORDER as set forth herein.

ORDER

Within 30 calendar days of the date this decision is issued, the Agency shall issue its final
decision pursuant to 29 C.F.R. § 1614.110(b), with the appropriate appeal rights to this
Commission.2 A copy of the Agency’s final decision must be sent to the Compliance Officer as
referenced herein.

2 Complainant is entitled to file a new appeal when a final agency decision is issued.
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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),
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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.

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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 12, 2018
Date