0120160957
06-06-2018
Henry S.,1 Complainant, v. Nancy M. Ware, Director, Court Services and Offender Supervision Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Henry S.,1
Complainant,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120160957
Hearing No. 570-2012-00798X
Agency No. CSOSAEEOF120003
DECISION
On January 7, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's December 7, 2015, final order 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 AFFIRMS the Agency's Final Order which fully implemented the Equal Employment Opportunity Commission's Administrative Judge's (AJ) decision without a hearing which found that Complainant did not demonstrate that he was subjected to discrimination.
ISSUE PRESENTED
The issue presented is whether Complainant established that his instant complaint should have been addressed as part of previous complaint which resulted in a default judgment against the Agency.
BACKGROUND
The record indicates that Complainant filed an EEO complaint against the Agency in December 2006, in which he alleged that the Agency discriminated against him on the bases of sex and in reprisal for prior protected EEO activity when he was subjected to harassment and a hostile work environment. Among the incidents listed by Complainant as part of his harassment claim, which was amended several times, were: (1) his supervisor made derogatory, threatening, and intimidating statements and subjected him to sexual harassment; (2) in November 2006, he was denied access to his EEO file; (3) he was placed in Absent Without Leave (AWOL) status for January 4, 2007; (4) he was placed on administrative leave on March 23, 2007; (5) on January 18, 2008, he was issued a Notice of Proposed Removal; and (6) in March 2006, he was suspended for allegedly sexually harassing another Agency employee.
Complainant requested a hearing before an EEOC Administrative Judge. Following the Agency's failure to show good cause as to why it had not complied with two of the Administrative Judge's (AJ1) Orders to produce the Report of Investigation, AJ1 issued a decision in which he sanctioned the Agency, and entered a default judgment in favor of Complainant. Among other things, however, AJ1 found that Complainant could only establish an entitlement to relief for the suspension in March 2006, and a subsequent two-week suspension that took place in February 2007. AJ1 also awarded relief for compensation lost when Complainant was placed on AWOL on January 4, 2007.
AJ1 specifically denied Complainant's request to amend his complaint to include his removal from the Agency on May 16, 2008, finding that it was appealable to the Merit Systems Protection Board, and not under the jurisdiction of the Commission. The Agency adopted AJ1's Order. Complainant appealed the Agency's final order to the Commission.
In Complainant v. Court Services and Offender Supervision Agency, EEOC Appeal No. 0120103671 (Feb. 8, 2011), the Commission found no basis for disturbing the AJ's findings with respect to the removal issue or the remedies provided. Both Complainant and the Agency timely requested reconsideration of the decision. In Complainant v. Court Services and Offender Supervision Agency, EEOC Request No. 0520110349 (Nov. 21, 2011), the Commission, among other things, found:
As to Complainant's argument that there were claims with which he attempted to amend to his complaint in 2007, but which were not properly processed by the Agency, and not addressed by the AJ, we find that there is no evidence in the record that the Agency processed Complainant's claim that his arrest on May 9, 2007, for unlawful entry at the Agency was executed in retaliation for his exercise of his EEO rights.2 Although Complainant raised this issue with the AJ in the form of requesting relief for this issue, there is no evidence that the Agency had either accepted or dismissed a formal complaint, had processed his request to amend his complaint with the issue, or had even provided counseling on it. Complainant supplied an e-mail which showed that he made contact with an Agency EEO Specialist on June 9, 2007, regarding his intent to start the EEO process on this issue. As the AJ did not specifically accept or dismiss this allegation, we find that Complainant should have the opportunity to file a formal complaint. He is advised to contact an EEO Counselor at the Agency to initiate counseling within fifteen (15) calendar days of his receipt of this decision; the Agency shall consider his date of initial EEO contact to be June 9, 2007.
Thereafter, on February 9, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when he was arrested on May 9, 2007.
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 Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing. On or about October 13, 2015, AJ2 issued a notice of intent to issue a Decision without a Hearing sua sponte and ordered Complainant to file an opposition. Complainant filed an opposition/motion for summary judgment. AJ2 determined that, based on the undisputed facts, it was appropriate to grant summary judgment in favor of the Agency and to deny Complainant's motion requesting summary judgment. Specifically, AJ2 found that the Agency articulated a legitimate, nondiscriminatory reason for its action, namely, that Complainant was on administrative leave pending an investigation of his alleged threatening behavior. He had been instructed not to return to the building and yet he returned which resulted in his arrest.
AJ2 also found that Complainant did not show that the justification for his arrest was pretextual. Specifically, Complainant did not show that the police were contacted because he engaged in prior EEO activity. Therefore, AJ2 found that Complainant did not establish his reprisal claim. The Agency subsequently issued a final order adopting AJ2's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the allegation regarding his arrest should have been part of EEOC Hearing No. 570-2007-00846X, i.e., the complaint on which AJ1 issued the default judgment. According to Complainant, "[N]o agency has the right to omit an eeo claim from the complaint file after I request a hearing."
The Agency did not submit a brief.
ANALYSIS AND FINDINGS
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, � IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal."). Here, the only matter that Complainant raises on appeal is his contention that the issue of his arrest should have been a part of EEOC Hearing No. 570-2007-00846X. As noted above, the Commission, in EEOC Request No. 0520110349 (Nov. 21, 2011), found that the Agency did not properly process Complainant's claim regarding his May 9, 2007 arrest. This error was remedied, however, when the Commission ordered the Agency to process the arrest claim. Complainant appears to argue that had his arrest claim been before AJ1 at the time the default judgment was issued, he would have been provided a remedy. We disagree. As noted above, AJ1 only found that Complainant established an entitlement to relief on three of his claims. We will not speculate here that AJ1 would have found an entitlement to relief on the arrest issue.
Based on a thorough review of the record, we further find that the AJ's issuance of a decision without a hearing was appropriate. Like AJ2, we do not find that Complainant established that the Agency subjected him to discrimination based on reprisal when he was arrested on May 9, 2007.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Order.
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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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
__6/6/18________________
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 Complainant worked as a Drug Testing Technician, GS-06 at the Agency's Community Supervision Services in Washington, DC. In May 2007, Complainant's coworkers complained about his alleged threatening behavior. Complainant was placed on administrative leave and was instructed in writing that he was not to enter Agency property without prior consent. Complainant was also instructed to call to schedule an investigatory interview no later than May 9, 2007. Thereafter, Complainant emailed the Assistant Director for Employee and Labor Relations, and indicated that he needed more time before scheduling the investigatory interview. When Complainant did not hear from the Assistant Director, he went to the Agency. When Complainant arrived the Deputy Director, Office of Security called the police and Complainant was arrested for unlawful entry. Complainant was released from jail later that evening.
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