0120152281
05-02-2017
Giselle W.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation (FBI)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Giselle W.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation (FBI)),
Agency.
Appeal No. 0120152281
Hearing No. 451-2015-00002X
Agency No. FBI-2013-00238
DECISION
On June 18, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a Final Order dated May 19, 2015, accepting with explanation an EEOC Administrative Judge (AJ) decision that procedurally dismissed her complaint alleging 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 an Auditor at the FBI's El Paso Division in El Paso, Texas.
On November 6, 2013, Complainant filed a formal complaint alleging she was unlawfully retaliated against for engaging in prior protected EEO activity when, in a sworn statement dated June 10, 2013, provided as part of an EEO investigation on a previously filed complaint, her second line supervisor (S2) threatened her with possible disciplinary action. The complaint was accepted by the Agency for investigation.
An examination of the sworn statement at issue shows that S2 expressed his outrage at the EEO process, which he believed lacked due process for him as the accused to defend himself and his character, and outrage for what he believed were Complainant's false statements supporting her complaint implicating him and involving others.
S2 further wrote that he believed there is a fiduciary responsibility to report an employee who knowingly provided false information in a formal document and/or lack of candor. However, he was told that doing so in the EEO context could be viewed as reprisal against a complainant for filing an EEO complaint. He indicated that this makes no sense, since the EEO process should not afford any employee an additional layer of protection, and allowing this protection encourages and facilitates misuse of the EEO process to retaliate against leaders. He believed there were significant inconsistencies between Complainant's EEO allegations and her actions/statements at the time of the events warrant further inquiry on the veracity of her allegations and truthfulness. He indicated he would leave it to others to determine whether Complainant violated any standards of conduct by willfully providing inconsistent statements, which she knew not to be whole, honest, or true. However, he believed that Complainant's actions constitute potential violations of FBI Standards of Conduct, i.e., Offense Code 2.4 - False/Misleading Information; Offense Code 2.5 - Lack of Candor/Lying - No Oath; Offense Code 2.11 - Obstruction of an Administrative Matter; and Offense Code 5.4 - Disruptive Behavior.
Thereafter, in explaining his June 10, 2013 statement, S2 wrote that FBI's EEO Director strongly recommended to him that he not directly report Complainant's potential misconduct to internal investigations because this would trigger a reprisal claim for having a chilling effect on the EEO process. Therefore, S2 decided to put his concerns in his June 10, 2013 statement. In argument to the AJ, Complainant conceded that S2 has not requested an investigation or disciplined her.
Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). Without a hearing and with prejudice, the AJ dismissed the complaint, holding that to permit such a claim would have a chilling effect on the EEO process. In support, the AJ cited a case where the EEOC dismissed a complainant's retaliation complaint which was based on a supervisor making an EEO statement with negative remarks about him. The AJ also found that Complainant was not aggrieved.
Thereafter, the Agency issued a Final Order2 which "agree[d]" with the AJ's decision that "the record did not support a finding of retaliation." However, in an accompanying explanation, the Agency stated that in the sworn statement at issue, S2 made remarks that appear to threaten disciplinary action against Complainant for engaging in EEO activity. By characterizing S2's statements as "negative remarks," the Agency indicated that the AJ failed to recognize Complainant's contention that S2's comments were poorly veiled threats of disciplinary action. The Agency also indicated that the AJ incorrectly failed to focus on the chilling effect that could be caused by S2's comments. Further, in finding Complainant was not aggrieved, the Agency found the AJ applied the wrong standard for stating a claim of reprisal - which is whether S2's comments could have dissuaded a reasonable employee from engaging in the EEO process. Nevertheless, the Agency found that record was insufficient to determine that S2's comments constituted actionable retaliation, largely because it does not show what investigatory questions S2 replied to in his sworn statement. Without more context, the Agency found it was impossible to determine if S2 was legitimately responding to an inquiry or attempting to dissuade Complainant from engaging in the EEO process. While all this should have been examined in an evidentiary hearing, the Agency determined it could not remand for one. Based on the record, the Agency urged the EEOC's Office of Federal Operations to remand the matter back for a hearing so that the record may be better developed.
The instant appeal followed. On appeal, Complainant argues that the Agency's explanation of its Final Order correctly analyzed the facts and legal standards, and requests that his complaint be remanded for a hearing so the record can be better developed.
In opposition to the appeal, the FBI's Office of General Counsel, as it did before the AJ, argues that Complainant's complaint fails to state a claim because it would have a chilling effect on the EEO process, Complainant is not aggrieved, and damages are not available for emotional distress that results from litigating an EEO claim.
ANALYSIS AND FINDINGS
An AJ may dismiss a complaint pursuant to 29 C.F.R. � 1614.107. EEOC Regulation 29 C.F.R. � 1614.109(b). A complaint which fails to state an actionable claim is subject to dismissal. 29 C.F.R. � 1614.107(a)(1).
The FBI's Office of General Counsel cites numerous cases where the EEOC found that a complaint failed to state a claim because allowing it to go forward would have a chilling effect on the EEO process. Among the strongest, we recount two. In Hayes v. United States Postal Service, EEOC Appeal No. 01A52408 (May 10, 2005), the complainant alleged that a manager submitted an affidavit in a prior EEO complaint pointing out that the complainant's position would be abolished; and describing him as a brainless or a lousy worker. The complainant claimed that this left him uncertain about his job, resulting in his forced retirement. In Purifoy v. Department of the Navy, EEOC Appeal No. 0120122234 (Oct. 10, 2012), the complainant alleged that in the EEO investigation agency management officials provided sworn statements regarding her performance and conduct which defamed her character, slandered her performance, credibility, and integrity.
While these cases accurately represent EEOC rulings, we distinguish them. Here, S2 went far beyond disputing Complainant's claims and stating they were false or untruthful. Instead, as recounted by the Agency, Complainant contended that S2's comments were poorly veiled threats of disciplinary action. Complainant contended, in effect, that S2 deliberately used the EEO process as a shield to make blatant direct severe threats against her, far beyond disputing her claims. While we are not making findings on the merits, a reasonable fact finder could point to remarks in support of these contentions. Given this, we find the above cases do not apply.
We also agree with the Agency's finding in its Final Order that the AJ used the wrong standard in concluding Complainant's complaint failed to state a claim. It would be reasonable to conclude that S2's comments made in his affidavit would be likely deter EEO activity. At this point, we need not determine whether damages are available to Complainant. Regardless, her complaint states a claim for which relief can be granted.
The AJ's decision is REVERSED.
ORDER
The Agency shall submit, on Complainant's behalf, a request for a hearing to the appropriate EEOC Hearings Unit, a brief cover letter explaining its reason for doing so, and a copy of this decision. The Agency shall provide a copy of this submission to Complainant, her attorney, and as referenced below the Compliance Officer. The Agency shall complete the above actions within 30 calendar days from the date of this decision.
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 (M0416)
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 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. The requests 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 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. 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
May 2, 2017
__________________
Date
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.
2 The Final Order was issued by the Department of Justice's Complaint Adjudication Office, not the FBI.
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