Ervin A.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120172541 (E.E.O.C. Oct. 23, 2018)

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

Ervin A.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Appeal No. 0120172541

Hearing No. 570-2016-00570X

Agency No. HS-HQ-23994-2015

DECISION

On July 13, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an AJ’s decision
to dismiss a hearing request concerning his equal employment opportunity (EEO) complaint
alleging 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. For the following reasons, the Commission
REMANDS the matter to the Agency for issuance of a final decision.

ISSUE PRESENTED

Whether the appeal is premature given the Agency has not issued a decision on the merits of the
complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was an applicant for employment
at the Agency’s National Protection and Programs Directorate, Federal Protective Service, in
Glynco, Georgia. Complainant previously worked at the Department of the Interior and for the

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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Agency within the Federal Emergency Management Agency (FEMA). Complainant engaged in
prior EEO activity while employed at both agencies.

Complainant alleged that in June 2014 he was offered the position of Supervisory Instructional
Systems Training Manager, subject to a background investigation. After undergoing completion
of the security investigation, he states the Agency withdrew its offer due to his failure to pass the
background investigation. Complainant alleges that the offer was withdrawn because of his prior
EEO activity and his sexual orientation.

On June 18, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of sex (sexual orientation) and reprisal for prior protected EEO activity
when on March 31, 2015, he learned that the job offer acceptance letter for the Director for
Curriculum Development and Policy (advertised under Job Announcement Number FS-1060026-
KB14) was rescinded by [DHS Security Officer] via [Human Resources Official, Federal
Protective Services].

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant requested a hearing. The AJ dismissed the hearing request after Complainant
notified the AJ on three occasions that he intended to take the matter to Federal District Court.
The AJ remanded the complaint to the Agency for issuance of a Final Agency Decision, and on
June 15, 2017, the Agency issued a “Notice of Intent to Issue a Final Action.”

In the Notice, the Agency informed Complainant that it would issue a procedural dismissal of his
complaint if he submitted a withdrawal notice, or a copy of a civil action complaint filed in Federal
District Court. The Agency notified Complainant that he had fifteen (15) days to submit such
evidence, or the Agency would issue a final agency action in accordance with 29 C.F.R.
§ 1614.110(b). There is no evidence in the record that the Agency issued a final decision on the
merits pursuant to the AJ Order. On July 13, 2017 Complainant filed the instant appeal. There is
no evidence that Complainant ever filed a civil action.

CONTENTIONS ON APPEAL

Complainant did not submit any contentions on appeal. The Agency submitted a brief in
opposition to Complainant’s appeal in which it argues that the AJ’s dismissal of Complainant’s
hearing request should be affirmed. In the alternative, the Agency argues that the entirety of
Complainant’s EEO complaint should be dismissed under 29 C.F.R. § 1614.107(a)(1) as the same
claim as that raised in his complaint in Agency No. HS-FEMA-23686-2014, EEOC Hearing No.
570-2016-00152X. The Agency states that the accepted claim in that complaint is as follows:
“Whether the Department of Homeland Security-FEMA discriminated against Complainant based
on Retaliation (prior EEO activity) when: On January 15, 2015, it came to Complainant’s attention
that FEMA management officials allegedly made false negative comments about Complainant to
a Security Clearance Investigator.
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Specifically, Complainant alleges the comments were that during his previous employment with
DHS/FEMA he was reassigned because of his inability to work with a FEMA Supervisor, and that
he was untrustworthy, unreliable and would not follow rules and regulations. Complainant alleges
that the tentative offer of employment with DHS/National Protection and Program Directorate was
rescinded as a result of the negative reference.”

ANALYSIS AND FINDINGS

An AJ has the authority to sanction a party for failing, without good cause shown, to fully comply
with an order. See 29 C.F.R. § 1614.109(0(3). Dismissal of a complaint as a sanction, however, is
only appropriate in extreme circumstances, where the complainant has engaged in contumacious
conduct, not simple negligence. See Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 12, 2000). Where a lesser sanction could deter the conduct and equitably remedy the
opposing party, an AJ may be abusing her discretion to impose a harsher sanction. Id.

Based on the record before us, we find that the AJ’s decision to dismiss the Request for a Hearing
was appropriate. In response to an AJ Order changing discovery deadlines, on June 8, 2017,
Complainant informed the AJ of his intent to file in Federal District Court. Then, in response to a
Notice of a Deposition issued by the Agency on the same day, Complainant informed both the
Agency and the AJ of his intent to file in Federal District Court “….if [he] can’t get fairness and
equality in the EEOC.” Agency Brief at Ex. 3. On June 12, 2017, the AJ issued a Discovery
Order and Notice of Possible Sanctions. Complainant informed the AJ that he believed the AJ
was biased against him, and again informed her that he would “continue to file my case in Federal
Court where I can get a fair and impartial [sic] hearing.” Agency Brief at Ex. 4.

In her Dismissal, the AJ determined that Complainant’s repeated notice of his intent to file in
Federal District Court constituted a request to withdraw the hearing request. Noting that there was
insufficient evidence that Complainant actually filed a civil action, the AJ noted that the complaint
itself was not dismissed, only the hearing request. After a review of the record, we find the AJ
was reasonable in her conclusion that Complainant wished to withdraw his hearing request and
file in federal court. See Hansen v. Dep’t. of Justice, EEOC Appeal No. 0120112338 (Sept 23,
2011) (holding that Complainant's request for a “right to sue” letter was in effect, a withdrawal of
his hearing request). However, we find the Agency failed to issue a decision on the merits in this
case. Accordingly, we remand the matter to the Agency for issuance of a decision.2

2 We note that Commission records show that the EEOC Hearing No. 570-2016-00152X has been
closed, but that there is no record of the issuance of a final Agency decision or that Complainant
has filed an appeal of that decision. We decline to dismiss Complainant’s instant complaint on the
basis of it being the same claim in the absence of evidence that any decision in Agency No. HS-
FEMA-23686-2014 addressed the merits of Complainant’s claim, or actually encompassed the
claims of the instant complaint.
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we REMAND the matter to the Agency for issuance of a final agency
decision.

ORDER

Within sixty (60) days from the date this decision is issued, the Agency shall issue a final agency
decision pursuant to either 29 C.F.R. § 1614.107 or 29 C.F.R. § 1614.110(b), with appropriate
appeal rights to the Commission.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.

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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.

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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
October 23, 2018
Date