Herschel T.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 22, 2020

2019002112 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herschel T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019002112 Hearing No. 440-2018-00159X Agency No. 200J-0609-2016102253 DECISION On January 31, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated December 21, 2018, dismissing 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Housekeeping Aide Supervisor, WS-3566-5 (night shift), at the VA Medical Center, Environmental Management Service in Marion, Illinois. On March 1, 2016, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his race/color (African-American/Black) and reprisal for prior protected EEO activity when instead of laterally transferring him to a day shift slot of his job he expressed he wanted for years, when one opened the Agency competitively 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. 2019002112 2 announced it on January 21, 2016, and after he applied he was notified on February 12, 2016, that he was not selected.2 The Agency investigated the complaint, and Complainant requested a hearing. The Agency filed a motion for summary judgement, which the assigned EEOC Administrative Judge (AJ) denied as to his race/color claim because material facts existed on whether the Agency’s reason for not selecting Complainant was believable. On the same day, the AJ ordered the parties to brief her on the issue of mootness. After the parties submitted their briefs, the AJ issued a decision dismissing the complaint for mootness, and in the alternative for failure to state a claim. Regarding mootness, the AJ reasoned that Complainant was moved to the day shift in June 2017, that he testified in a deposition he did not suffer any compensatory or financial damages as the result of this delay; and that he earned more money when he worked on the night shift because of shift differential pay. Regarding failure to state a claim, the AJ reasoned that Complainant incurred no loss of pay, benefits, or damages as a result of the delay in moving to the day shift. The instant appeal followed. ANALYSIS AND FINDINGS EEOC regulation 29 C.F.R. § 1614.107(a)(5) provides for the dismissal of a complaint when the issues raised have been rendered moot. To determine this, the fact finder must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur; and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Regarding the second criterion, an agency cannot dismiss an allegation as moot where the complainant has requested compensatory damages unless the agency can show that the complainant is not entitled to such damages. Ellicker v. Agriculture, EEOC Request No. 05931079 (Sep. 22, 1994). When a complainant requests compensatory damages, the agency must request that he provide some objective proof of the alleged damages incurred, as well as objective evidence linking those damages to the adverse actions at issue. Benton v. Defense, EEOC Appeal No. 01932422 (Dec. 10, 1993). 2 The Agency defined the EEO complaint only in terms of Complainant not being selected under the vacancy announcement. Our definition is more tailored to Complainant’s complaint. Report of Investigation (ROI), Section 1-1, at Bates No. 5. Complainant discussed his failure to transfer claim in his transcribed affidavit. Id., at Section 7-1, at 8 & 9, Bates No. 110. An EEOC administrative judge recognized the transfer claim when on July 30, 2018, she ordered the Agency to secure from the responsible management official an affidavit answering why he posted the position rather than transfer Complainant, and related questions. 2019002112 3 In finding that Complainant did not request compensatory damages, the AJ referred to Complainant’s testimony in an excerpt of his deposition the Agency provided, at p. 36. Our review reveals that Complainant was referring only to pecuniary damages (financial losses). Later in the deposition, the Agency asked Complainant what he meant in his interrogatory response that for a complete settlement he wanted compensation for pain and suffering, and he responded pain for being denied the right everyone else had to be transferred. Complainant’s deposition, at 63. In sum, we conclude that Complainant did request non-pecuniary damages (e.g., pain and suffering). The record does not show that Complainant was asked to provide objective proof of such damages. Should Complainant prevail on this complaint, the possibility of an award of compensatory damages exists. Accordingly, we reverse the finding that Complainant’s complaint is moot. We also find that Complainant’s complaint states a claim. After Complainant learned on February 12, 2016, that he not selected for a day shift slot, he was not moved to the day shift until June 2017, more than a year later. Complainant desired to work on the day shift, and working the day versus night shift regards a significant term or condition of employment. Complainant stated that he previously contacted the Agency’s EEO office on a like matter, and thereafter engaged in mediation around October 2014. While the AJ denied the Agency’s request for summary judgment as to Complainant’s race/color claim, she did not do so regarding reprisal. She reasoned that Complainant’s non-selection claim occurred in February 2016, too remote in time from his EEO activity in 2014. We hold that so long as the AJ finds there is a genuine issue of material fact on whether the Agency’s alleged nondiscriminatory reason for not selecting (or transferring) Complainant was believable regarding his race/color claim, the same applies to his reprisal claim. Accordingly, the AJ’s decision to grant summary judgment as to Complainant’s reprisal claim is reversed. Complainant also contends that he was improperly denied official time. For example, Complainant took annual leave to attend a March 26, 2018 telephone conference ordered by the AJ, and instead of getting official time, he had to use annual leave. It is unlikely that most of the eight hours of annual leave Complainant took was for the telephone conference. Still, under 29 C.F.R. § 1614.605(b), if a complainant is employed by the agency and otherwise in a pay status, he shall be on official time, regardless of his tour of duty, when his presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on the complaint. In her final decision, the AJ denied Complainant’s official time claim for untimeliness. The right to official time is governed by the above regulation. An official time claim is separately alleging a violation of the Commission regulations, and does not require determination of a discriminatory motive. This means the EEOC has authority to remedy a 29 C.F.R. § 1614.605 violation without a finding of discrimination. Official time claims should not be processed in accordance with 29 C.F.R. 1614.108, since inquiry is not motivation, but rather Agency justification of why it denied the complainant any amount of official time. Edwards v. USPS, EEOC Request No. 05960179 (Dec. 23, 1996). 2019002112 4 Because a determination on official time regards whether the Agency is in compliance with an EEO processing regulation, not discrimination, so long as Complainant’s EEO complaint, for which he claims he is entitled to official time is pending before the AJ, timeliness of the official time matter is not an issue.3 Accordingly, the AJ’s denial of Complainant’s official time claim for untimeliness is reversed.4 3 In argument during the hearing process, Complainant’s non-attorney representative repeatedly emphasized that Complainant was entitled to damages because Complainant was not provided official time. We disagree since the provision of official time is governed by 29 C.F.R. § 1614.605, not whether there was employment discrimination. Further, generally, the remedy for denial of official time is equitable, i.e., restoration of lost leave or wages for the hours official time should have been granted, and where warranted other injunctive relief. 4 Agencies are required to inform complainants on how to claim or request official time. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 6 § VII(C)(5) at p. 6-19 (Aug. 15, 2015). A complainant and the agency should arrive at a mutual understanding as to the amount of official time to be used prior to the complainant using such time, except that all time is official time if the complainant is employed by the agency and otherwise in a pay status when his presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing stages. EEO-MD-110, Chap. 6 § VII(C)(1) & (2) at p. 6-17. We take administrative notice that after Complainant filed the instant EEO complaint (200J-0609- 2016102253), he filed another one in August 2016, about being denied official time for time he expended in the complaint 200J-0609-2016102253 process. The Agency dismissed the later complaint, and Complainant appealed. In EEOC Appeal No. 2019001767 (Apr. 30, 2019), the Commission found that Complainant admitted in the later complaint process that he did not request official time for his work on his 200J-0609-2016102253 claim and the Agency had not yet denied any. Complainant claimed in his later complaint, as he does now, that the Agency failed to inform him about the ability to use official time for the prior complaint, but the Commission in EEOC Appeal No. 2019001767 did not address this matter because it related to complaint 200J-0609- 2016102253. The Commission ultimately affirmed the dismissal of the later complaint because it constituted an impermissible spin-off complaint under 29 C.F.R. § 1614.107(a)(8). We find that Complainant’s official time claim is not rendered res judicata by the Commission’s decision in EEOC Appeal No. 2019001767. The Commission essentially ruled that the official time claim was not ripe, i.e., that Complainant had made no requests and the Agency had not yet denied any. Also, the Commission declined to adjudicate Complainant’s claim that he was entitled to official time because the Agency did not notify him of his ability to use it since this related to complaint 200J-0609-2016102253. Significantly, because the Commission ultimately dismissed the later EEO complaint for constituting an impermissible spin-off, it did not adjudicate the substance of the official time claim. 2019002112 5 The Agency’s final order is REVERSED and the complaint is REMANDED for further processing in accordance with the following Order. ORDER Within fifteen (15) calendar days of the date this decision is issued, the Agency shall submit a new hearing request on Complainant’s behalf, as well as a copy of the complete complaint file and this appellate decision, to the Hearings Unit of the EEOC’s Milwaukee Area Office. The remanded issue is: whether the Agency discriminated against Complainant based on his race/color (African-American/Black) and reprisal for prior protected EEO activity when instead of laterally transferring him to a day shift slot of his job that he expressed he wanted for years, when one opened the Agency competitively announced it on January 21, 2016, and after he applied he was notified on February 12, 2016, that he was not selected. The AJ shall also develop and rule on the substance of Complainant’s official time claims for this complaint. Thereafter, the AJ shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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). 2019002112 6 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2019002112 7 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 January 22, 2020 Date