U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Olin M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2020003640 Hearing No. 510-2016-00321X Agency No. HS-ICE-24660-2015 DECISION 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 May 20, 2020 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Senior Intelligence Research Specialist, GS-13, in Miami, Florida. On October 28, 2015, Complainant filed a formal EEO complaint alleging that the Agency unlawfully retaliated against him for engaging in prior protected EEO activity. On January 14, 2016, the Agency issued a partial acceptance of Complainant’s formal complaint and determined it was comprised of the following claims: 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. 2020003640 2 1. On August 3, 2015, [Complainant] learned that [Agency] management inappropriately discussed and shared a copy of a Letter of Counseling (LOC) [he was] issued on December 2, 2013, with a contract investigator conducting [his] clearance renewal investigation. 2. On December 2, 2013, management forced [him] to sign the LOC. 3. On or about December 2, 2013, [Complainant was] not provided agency legal counsel to represent [his] interests with regard to the LOC, while management was provided with agency legal counsel and [he believes] this was a violation of [his] due process rights under the 14th Amendment to the Constitution. The Agency accepted claim (1) for investigation. The Agency, however, dismissed claim (2) for raising the same claim that was previously raised in a prior complaint. In addition, the Agency dismissed claim (3) for untimely EEO Counselor contact. After an investigation of claim (1), the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 18, 2017 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on April 13, 2020. In her decision, the AJ found that the responsible Agency officials articulated a legitimate, nondiscriminatory reason for the disputed action. Specifically, the AJ found that management officials stated that it was standard practice to inquire about an employee’s disciplinary and performance history as part of a security clearance investigation. In addition, management officials are charged with providing complete and accurate information responsive to such inquiries. Moreover, the AJ found that Complainant’s security clearance did not lapse. AJ Decision at 3-4. The AJ further found that Complainant did not establish that the articulated reasons for the action was a pretext masking unlawful retaliatory animus. AJ Decision at 6. In a footnote in her decision, the AJ stated that Complainant filed several letters requesting that Agency Counsel be removed from the instant matter. The AJ stated that Complainant did not provide legal authority upon which to grant his request. AJ Decision at 2. n. 1. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant asserts that Agency Counsel engaged in unethical conduct. Complainant asserts that Agency Counsel intimidated and threatened him during the “interview.”2 2 It appears the “interview” Complainant is referring to is his deposition taken on March 15, 2017. 2020003640 3 In addition, Complainant asserts that Agency Counsel inappropriately had the court stenographer delete portions of his testimony during a deposition. Finally, Complainant asserts that the AJ failed to take proper action against Agency Counsel for this behavior. ANALYSIS AND FINDINGS We are unable to make a determination on the merits for this matter based on the record before us. EEOC Regulation 29 C.F.R. § 1614.403(d) provides that the agency must submit the complaint file to the Office of Federal Operations (OFO) within 30 days of initial notification that a complainant has filed an appeal. In addition, EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110)-Chapter 6, Section VIII (E) (rev. Aug. 5, 2015) provides, in pertinent part, that the complaint file should contain all pre-hearing submissions including all discovery documentation. As an attachment to its Motion for a Decision Without a Hearing, the Agency submits a record which contains a copy of portions of Complainant’s deposition taken on March 15, 2017. According to the index for the deposition, the direct examination of Complainant by Agency Counsel starts on page four of the deposition transcript. However, the copy of the deposition transcript submitted by the Agency does not contain pages 4-60. The copy of Complainant’s deposition submitted by the Agency does contain pages 61-145. However, there appears to be portions of testimony following page 145 of the deposition which are not contained in the record. As set forth above, Complainant asserts on appeal, that the Agency inappropriately deleted portions of his testimony which resulted in a biased view of the evidence. Based on the foregoing, we will order the Agency to supplement the record with the missing portions of Complainant’s deposition. CONCLUSION Accordingly, we VACATE the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination and REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER Within sixty (60) calendar days from the date this decision issued, the Agency shall take the following actions: 1. Supplement the record with a copy of Complainant’s March 15, 2017 deposition in its entirety in accordance with the instant decision or submit good cause for not doing so. 2. The Agency shall also review the current record to determine if all documentation for the instant matter is contained in the record, including, but not limited to, all documentation from the parties and the AJ, once Complainant requested a hearing. 2020003640 4 3. The Agency shall issue a new final order in this matter with appeal rights to the Commission. The Agency shall submit via the Federal Sector EEO Portal a copy of supporting documentation showing the record has been supplemented as ordered and the Agency’s new final order, as set forth in the section below entitled “Implementation of the Commission’s Decision.” 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). 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2020003640 5 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003640 6 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 November 8, 2021 Date
