Horacio Z.,1 Complainant,v.Loretta E. Lynch, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Jan 29, 2016

0120140312 (E.E.O.C. Jan. 29, 2016)

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

Horacio Z.,1
Complainant,

v.

Loretta E. Lynch,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120140312

Hearing No. 570-2013-00074X

Agency No. USM-2012-00091

DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated
November 4, 2013, dismissing his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq

.
Upon review, the Commission finds that Complainant's complaint was properly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Deputy United
States Marshal, GS-1811-12, assigned to the Fugitive Investigations Unit of the District of
Columbia Superior Court. On November 28, 2011, Complainant filed a formal complaint
wherein he claimed that the Agency discriminated against him on the basis of his race
(African-American) when he was falsely accused of theft and misconduct and subsequently
informed on October 21, 2011, that he was referred to the Agency’s Office of Internal
Investigations. Complainant claimed that he had been subjected to a hostile work environment.

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.
0120140312

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The complaint was accepted for investigation. 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 (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ
assigned to the case granted the Agency’s Motion for Summary Judgment and issued a decision
without a hearing on September 18, 2013.

The AJ found that the instant complaint failed to state a claim and dismissed the complaint
pursuant to 29 C.F.R. § 1614.107(a)(1). The record reveals that on the evening of September
27, 2011, Complainant and a D.C. Superior Court Judge were scheduled to appear at a
community event sponsored by an organization that provided volunteer services. Complainant
was driving his vehicle in front of the Judge’s personal vehicle. An Agency vehicle was
following the Judge’s personal vehicle as an escort. Complainant made contact with the
Deputy Marshals in the Agency vehicle to inquire if there was a problem and was told there
was no problem. One of the Deputy Marshals in the Agency vehicle reported to the Judicial
Security Supervisor that Complainant, without a request for assistance, had placed his car in
front of the Judge’s automobile to lead the motorcade.

The AJ noted that the Supervisor of Judicial Security contacted her Supervisor in District
Management to report that Complainant had interfered with a protection detail and possibly
improperly claimed entitlement to overtime pay for that evening. On October 4, 2011, prior to
District Management’s completion of its inquiry, the Supervisor of Judicial Security reported
Complainant to the Office of Internal Investigations. The Office of Internal Investigations
decided not to pursue an investigation. In a memorandum issued on October 19, 2011, the
Office of Internal Investigations recommended that the allegations against Complainant be
addressed by District Management. On October 27, 2011, District Management completed its
inquiry and cleared Complainant of any wrongdoing.

The AJ rejected Complainant’s claim of a hostile work environment. The AJ noted that
District Management expeditiously exonerated Complainant within seven days of receiving the
allegations from the Office of Internal Investigations. The AJ further noted that by the time
Complainant learned that he had been referred to the Office of Internal Investigations, the
Office of Investigations had decided not to pursue an investigation. The AJ reasoned that the
treatment at issue was not sufficiently severe or pervasive as to interfere with Complainant’s
work performance.

The AJ further stated that the Judicial Security Supervisor’s report to officials in District
Management and the Office of Internal Investigations was akin to a preliminary step that could
have led to discipline or adverse effects on Complainant’s employment. The AJ observed that
there is no evidence that any adverse effects emerged either during or after the one month
period in which the charges were pending. The AJ stated that Complainant did not identify
any specific opportunities for raises, promotions, overtime, or supervisory duties that he lost as
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a result of the allegations. The AJ found that Complainant had not suffered a direct and
personal deprivation.

The Agency subsequently issued a final order implementing the AJ’s decision. Thereafter,
Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

The Commission has held that being the subject of an internal investigation does not render an
individual aggrieved under the EEOC regulations, because an investigation is a preliminary
step toward a personnel action. See Johnson v. Department of the Navy, EEOC Request No.
05960699 (April 16, 1998); Mattocks v. Department of the Navy, EEOC Request No.
05950549 (August 29, 1996). We find that Complainant has failed to state a claim pursuant to
29 C.F.R. § 1614.107(a)(1).

CONCLUSION

Accordingly, the Agency's final order dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0815)

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, P.O. Box 77960, Washington, DC 20013. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
0120140312

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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 (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

January 29, 2016
Date