U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Julian L.,1
Complainant,
v.
Robert M. Lightfoot, Jr.,
Acting Administrator,
National Aeronautics and Space Administration
(Goddard Space Flight Center),
Agency.
Petition No. 0420150010
Appeal Nos. 0120113522 & 0120113467
Agency No. NCN-08-GSFC-A020
DECISION ON A PETITION FOR CLARIFICATION
On June 25, 2015, the Equal Employment Opportunity Commission (EEOC or Commission)
docketed the Agency’s Petition for Clarification to examine the enforcement of an Order set
forth in EEOC Appeal Nos. 0120113522 & 0120113467 (September 26, 2013). The
Commission accepts this petition pursuant to 29 C.F.R. § 1614.503. The Agency requests that
the Commission clarify the requirements of the Order with respect to the processing of remanded
claims.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a contract employee
with the QSS Group providing laboratory support at the Agency’s Goddard Space Flight Center
in Greenbelt, Maryland. On January 22, 2008, Complainant filed a formal complaint wherein he
claimed discrimination on the bases of race (Caucasian), age (61), sex (male), and in reprisal for
his prior EEO activity when he was not selected for the position of Electronics Engineer (AST,
Electronics Systems Failure Analysis), GS-0260-13/14. On December 16, 2010, this claim was
resolved by settlement.
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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2
On April 8, 2011, Complainant was removed from his position. On April 12, 2011, Complainant
informed the Agency that it was in breach of its obligations under the terms of the December 16,
2010 settlement agreement which required the Agency, inter alia, to refrain from retaliation. On
May 6, 2011, Complainant submitted a document he described as a “complaint of retaliation and
discrimination” to the Agency’s EEO office regarding his termination. On May 11, 2011,
Complainant made an additional submission to the Agency’s EEO office including a complaint
and “22 pages of narrative” which covered Complainant’s history of working as a contractor at
the Agency from 1997 through 2011. Events related to previous EEO complaints he had filed
were included in this document. The EEO office declined to accept Complainant’s complaint
into the EEO process, informing him instead that it would be handled as a claim of settlement
breach.
On June 20, 2011, Complainant filed an appeal as to the Agency’s refusal to process his
complaint as an EEO claim (EEOC Appeal No. 0120113467). Then, in a July 8, 2011 final
decision, the Agency determined that it had not breached the settlement agreement. On July 21,
2011, Complainant filed an appeal from that order (EEOC Appeal No. 0120113522). The
Commission consolidated the appeals. It found that the Agency had not breached the settlement
agreement but held that “the Agency erred by not affording Complainant the opportunity to
address his termination through the EEO complaint process.” The Commission observed that,
because the EEO complaint also encompassed matters not within the scope of the settlement
breach claim, on remand “. . . the Agency will need to determine what claims are appropriate for
investigation.” The Commission ordered that “the complaint that was not processed by the
Agency is REMANDED for further processing . . .” EEOC Appeal Nos. 0120113467 &
0120113522 (September 26, 2013). (emphasis added). The Commission’s Order stated, in part,
that, “The Agency is ordered to process the remanded claim(s) in accordance with 29 C.F.R. §
1614.108.”
On remand, the Agency attempted to engage Complainant in the EEO counseling process
pursuant to 29 C.F.R. § 1614.105, but he refused to participate, taking the position that the
Commission’s Order contemplated that the normal informal counseling process should be
bypassed and that an investigation of Complainant’s claim be undertaken immediately, pursuant
to 29 C.F.R. § 1614.108.
In the face of Complainant’s refusal, on May 29, 2014, the Agency terminated the counseling
process and issued Complainant a notice of right to file a formal complaint, pursuant to 29
C.F.R. § 1614.105(d). Complainant failed to file a formal complaint within the allotted 15-day
period. By the instant Petition for Clarification the Agency seeks to be advised whether its
actions complied with the Order in this matter or whether further compliance actions on its part
are required.
Complainant opposes the Agency’s position that it has fulfilled its obligation to comply with the
Order in EEOC Appeal Nos. 0120113467 & 0120113522. Complainant requests that we order
the Agency to commence an investigation into his claim of retaliatory termination.
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He conceded that the Agency may need to further define which of his “additional complaints”
should be included in the investigation.
Complainant and the Agency also disagree on whether Complainant’s status as a “contingent
worker” has been litigated and decided. The Agency contends that it has not done so with
respect to Complainant’s May 2011 EEO complaint. Complainant claims that he had been
deemed to be a “contingent worker” in the parties’ December 16, 2011 settlement agreement.
The Agency disputes that this was so.
ANALYSIS AND FINDINGS
On behalf of the Commission, the Office of Federal Operations may, on its own motion or in
response to a petition for enforcement or in connection with a timely request for reconsideration,
issue a clarification of a prior decision. 29 C.F.R. § 1614.503(c). A clarification cannot change
the result of a prior decision or enlarge or diminish the relief ordered, but may further explain the
meaning or intent of the prior decision. Id.
Here, in opposing the Agency’s position, Complainant argues that the EEO counseling process
should be dispensed with and an investigation begun immediately because the Commission
ordered the Agency “to process the remanded claims(s) in accordance with 29 C.F.R.
§ 1614.108.”2
The EEO counseling phase of the process is crucial in defining the claims to be processed. By
using the phrase “determine what claims are appropriate for investigation,” the Commission’s
September 26, 2013 decision explicitly contemplated a review by the Agency of the issues to be
investigated prior to the commencement of the investigation. The Agency’s use of an EEO
Counselor to assist in the definition of the claims to be processed was clearly within the scope of
the prior decision. Further, as the Complainant had already submitted a formal complaint to the
Agency’s EEO Office, he was not required to resubmit the complaint following the Counselor’s
involvement in the process. Typically, after a complainant has filed a formal complaint, the
Agency issues a determination of the issues to be investigated and either accepts or dismisses
claims pursuant to 29 C.F.R. § 1614.107. However, the Order in the previous decision explicitly
stated that the Agency was to process the remanded claims of Complainant’s complaint “in
accordance with 29 C.F.R. § 1614.108.” As such, the Agency is required to investigate
Complainant’s claim of retaliatory termination as contained in his May 11, 2011 submission to
the Agency’s EEO office, which included a complaint and 22 pages of narrative regarding his
employment history at the Agency.
In order to carry out the investigation into Complainant’s complaint, it will be necessary for the
Agency to define the claims for the EEO Investigator. The Agency should issue a letter to
Complainant and the EEO Investigator which defines what bases of discrimination and what
2 The regulation at 29 C.F.R. § 1614.108 specifies the procedures for the “[i]nvestigation of
complaints.”
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issues will be investigated, including Complainant’s termination. As with any letter of
acceptance, the Agency shall notify Complainant of his opportunity to dispute the issues which
were not included for investigation with either an EEOC Administrative Judge, should he request
a hearing at the conclusion of the investigation, or with the Commission on appeal, should he
request a final Agency decision on the record. See Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 5, § I. (Aug. 5, 2015).
CONCLUSION
For the reasons stated herein, the Commission GRANTS the Agency’s Petition for Clarification
and directs that the Agency comply with the order in EEOC Appeal Nos. 0120113467 &
0120113522, as clarified above.
ORDER
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.
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.
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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
February 22, 2018
Date
