[Redacted], Roman B., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency.

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2020000823 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roman B.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Farm Service Agency), Agency. Appeal No. 2020000823 Hearing No. 560-2018-00148X Agency No. FSA-2017-00336 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 September 13, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Deputy Property Management Officer, GS- 14, at the Agency’s Farm Service Agency in Kansas City, Missouri. On April 25, 2017, Complainant filed a formal EEO complaint claiming that the Agency subjected Complainant to discrimination and harassment based on race (Black), national origin (American), religion (Jehovah's Witness), color (light complexion), disability (hearing), age (YOB: 1952), and in reprisal for prior protected EEO activity when: 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. 2020000823 2 1. on April 25, 2017, Complainant received a Notice of Proposed Suspension (NOPS) suspending him for 14 days effective May 7-20, 2017; 2. on January 11, 18, and 20, 2017, as well as other dates (not specified), Complainant’s supervisor changed his Time and Attendance (T&A) to reflect he was absent without leave (AWOL) on January 4-6, 2017; 3. on December 14, 2016, Complainant received a Meets Fully Successful performance rating; 4. on several dates, Complainant was subjected to various acts of harassment, including, but not limited to: a. on December 14, 2016, Complainant’s supervisor said that he needed to retire because he was too old to learn; b. on July 12, 2016, Complainant’s supervisor told him his performance was unacceptable and placed him on an Opportunity to Improve (OTI) without substantiation; c. in a meeting in July 216, Complainant’s supervisor improperly blamed him for a property inventory delinquency situation; d. in April 2016, Complainant’s supervisor ordered him to move to an inferior office; e. on November 19, 2015, Complainant’s supervisor told him that he was informed that he did not do any work in his own division; f. on various dates, Complainant’s supervisor interfered with the performance of his duties; g. on various dates, Complainant’s supervisor implied that as an African American of American national origin, he did not work hard and/or truly earn his position and grade; h. on various dates, Complainant’s supervisor criticized him by stating in a meeting, that as a GS 14, he should know basic property matters; i. on various dates, Complainant’s supervisor refused to acknowledge positive feedback received from FSA State Offices, concerning his performance; j. on various dates, Complainant’s supervisor assigned him work below his grade level and/or work outside of his position description, scope of training, or professional qualifications; and 2020000823 3 k. on various dates, Complainant’s supervisor denied his travel requests and removed his travel budget. On May 5, 2017, the Agency accepted Complainant’s claims for investigation. However, on July 5, 2017, Complainant, through counsel, added an exemplary incident of harassment concerning Complainant receiving a Notice of Overpayment and Salary and Demand for Payment dated May 25, 2017, which Complainant did not receive until June 27, 2017.2 On October 17, 2017, the Agency informed Complainant that an investigation into the accepted claims had not been completed within the 180-day time frame.3 In response, Complainant, through counsel, filed a motion for default judgment on October 23, 2017 for failure to timely investigate Complainant’s formal complaint, pursuant to 29 C.F.R. § 1614.108(f). Complainant asserted that the Agency was required to complete the report of investigation (ROI) within 180 days after Complainant submitted his formal complaint, or by October 23, 2017.4 Simultaneously on October 23, 2017, Complainant, through counsel, requested an administrative hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ), pursuant to 29 C.F.R. §§ 1614.106(e)(2) and 1614.108(h). On October 31, 2017, the Agency attempted to conduct an investigative interview with Complainant. However, Complainant’s counsel informed the Agency that it no longer had any jurisdiction to investigate the complaint, pursuant to 29 C.F.R. § 1614.108(g), because Complainant had filed a request for hearing and a motion for default judgment on October 23, 2017. On October 24, 2017, Complainant’s counsel file a motion to amend the formal complaint for supplemental investigation and for a stay. Specifically, Complainant sought to amend his formal complaint to include the following allegation: when as a continuing violation from November 2015 to the present, Complainant was subjected to a hostile work environment, reflected by incidents which include, but are not limited to, the following claim: on September 14, 2017, Complainant was notified that a management official had attempted to direct another management official fire Complainant. 2 Complainant’s counsel clarified that the new exemplary incident of harassment did not constitute an amendment of the formal complaint. 3 The Agency further informed Complainant of his right to request an EEOC hearing or file a civil action in U.S. District Court. The Agency also indicated that estimated completion of the investigation was December 11, 2017. 4 We note that 180 days after Complainant filed his April 25, 2017 formal complaint fell on Sunday, October 22, 2017. Consequently, the Agency’s deadline to complete the investigation was extended to the next business day, Monday, October 23, 2017. 2020000823 4 On November 13, 2017, Complainant’s counsel filed a second motion to amend the formal complaint for supplemental investigation and for a stay which included two more additional claims as stated below: Complainant was subjected to a hostile work environment, reflected by incidents which include, but are not limited to, the following matters: • on September 29, 2017, Complainant was notified that a management official had attempted to direct another management official to fire Complainant; and • on October 26, 2017, Complainant was issued a verbal counseling criticizing him for using unscheduled leave occasioned by the October 2017 death of Complainant’s daughter. Thereafter, the Agency completed the investigation in December 2017 and Complainant’s counsel refiled a renewed motion for default judgment on January 22, 2018. After receiving a response from the Agency and a reply from Complainant regarding the pending motions for default judgment, the AJ issued a July 8, 2018 Order denying Complainant’s request for default judgment. However, the AJ granted Complainant’s request to amend the formal complaint to include the new harassment claim occurring on September 14, 2017. On July 19, 2019, Complainant withdrew his hearing request, and the AJ remanded the complaint to the Agency for further processing. On September 13, 2019, the Agency issued a final decision finding no discrimination. The instant appeal followed. On appeal, Complainant, through counsel,5 requests that the Commission sanction the Agency with a default judgment for failure to timely investigate the instant complaint. Alternatively, Complainant requests that Commission remand the claims identified in Complainant’s two separate motions to the Agency for investigation. Complainant explains that the Agency failed to adjudicate these claims even though the AJ had accepted Complainant’s October 24, 2017 motion to amend. Finally, Complainant argues that the ROI in the record is incomplete because it does not include Complainant’s affidavit, testimony from witnesses Complainant may have identified, or any evidence Complainant could have submitted at the formal complaint stage. Complainant acknowledges that he did not participate in the investigation. However, Complainant asserts that his decision not to participate was appropriate because he had filed a motion for default judgment and a request for an AJ hearing before the investigation began. 5 The record indicates that as of May 31, 2021, Complainant is no longer represented by counsel. 2020000823 5 In response, the Agency does not address Complainant’s arguments regarding sanctions or remanded claims. Instead the Agency asserts that the record reflects that Complainant was not discriminated against as alleged. ANALYSIS AND FINDINGS Untimely Investigation In this case, Complainant filed his formal EEO complaint on April 25, 2017. EEOC regulation 29 C.F.R. § 1614.108(e) provides that the Agency shall complete its investigation within 180 days of the date of the filing of an individual. In this case, the 180-day period ended on October 23, 2017. Complainant requested a hearing with an AJ on or about October 24, 2017. The Agency did not complete the investigation until December 2017. The AJ found that the Complainant was not prejudiced by the Agency’s completion of the investigation two months after the 180-day period had passed. The AJ explained, in the July 8, 2019 Order, that Complainant was not harmed or prejudiced by the two-month delay because the complaint was not assigned to an AJ until ten months after the ROI was issued. The record reflects that the Agency notified Complainant on October 17, 2017, that it would not complete the investigation within the 180-day period. However, the Agency indicated that it anticipated completing the investigation by December 2017. The record further reflects that the Agency did, in fact, complete the investigation in December 2017, and the AJ was assigned to adjudicate this complaint in October 2018. Under these circumstances, we find that the AJ did not abuse her discretion when she denied Complainant’s request for sanctions because of an untimely investigation. October 24, 2017 Amended Claim The record reflects that the AJ granted only one of Complainant’s motions to amend and determined that the formal complaint should include the alleged September 14, 2017 incident. However, the AJ denied Complainant’s request for a supplemental investigation and determined that this claim would be developed during the discovery process. It appears that e discovery did not occur because Complainant subsequently withdrew his hearing request. Nevertheless, we find that the AJ amended the complaint to include this additional claim before remanding the complaint to the Agency to issue a final decision. Consequently, the Agency should have accepted, acknowledged, and further developed this claim before issuing the final decision, but failed to do so. Therefore, we remand this claim in accordance with our Order below. November 13, 2017 Amended Claims Our review of the record supports, and Complainant does not dispute, that the AJ did not issue a determination on whether to accept or reject Complainant’s two additional amended claims submitted on November 13, 2017. 2020000823 6 As a result, Complainant asserts that the AJ erred by failing to issue a ruling on the matter, and in turn, the Agency failed to remand the claims for a supplemental investigation. However, because Complainant chose to withdraw from the hearing process, the Commission declines to review on appeal the procedural rulings made by the AJ, or outstanding hearing matters that were pending at the time of his withdrawal. See Complainant v. U.S. Office of Pers. Mgmt., EEOC Appeal No. 0120120901 (Dec. 2, 2013); Arvizu v. Dep't of the Navy, EEOC Request No. 0520100598 (Dec. 17, 2010) (“The regulations found at 29 C.F.R. Part 1614 do not provide for interlocutory appeals of AJ decisions .... [I]f Complainant wished to challenge the ruling of the AJ, he should have remained within the hearings process, received a decision from the AJ, and appealed to the Commission following the Agency's issuance of a final order.”); Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (in light of Complainant's withdrawal of hearing request mid-hearing, the Commission refused to consider Complainant's challenge to AJ's rulings on discovery, hearing witnesses, and exhibits; “Complainant cannot evade the prohibition on interlocutory appeals from AJ discovery rulings by seeking to withdraw her hearing request in order to obtain appellate review of a FAD only for purposes of obtaining reversal of the discovery rulings and remand for a hearing. Complainant has waived her right to a hearing, and we now review the FADs on the merits of Complainant's claims.”). Accordingly, the Commission will not review on appeal Complainant's challenges to rulings by the AJ on discovery, sanctions, witnesses, or any other hearing-related matters. Moreover, we will not review the outstanding issues the AJ had taken under advisement and not yet ruled on at the time Complainant withdrew his hearing request. Investigative Record We note that EEOC regulation 29 C.F.R. § 1614.109(a) specifies that once a hearing has been requested, the AJ assumes sole responsibility for the processing of the complaint. Here, the record indicates that Complainant requested an AJ hearing on October 24, 2017, after the Agency failed to complete an investigation within the 180-day limitation period. Consequently, the Agency no longer had jurisdiction to investigate the formal complaint when on October 31, 2017, it contacted Complainant to participate in the investigative process. Given these circumstances, Complainant’s decision to decline participation in the Agency’s investigative process was permissible. After Complainant withdrew his hearing request, the AJ remanded the formal complaint to the Agency and it became the Agency’s responsibility to develop an impartial and appropriate factual record, pursuant to 29 C.F.R. § 1614.108(b). However, the investigative record omits an affidavit from Complainant, testimony from witness Complainant may have identified, or any evidence Complainant could have submitted at the formal complaint stage, and is therefore, incomplete. CONCLUSION Accordingly, we VACATE the agency's September 13, 2019 final decision finding of no discrimination, and REMAND this matter for a supplemental investigation in accordance with the following ORDER. 2020000823 7 ORDER The Agency is ordered to conduct a supplemental investigation, which shall include the following actions: 1. The Agency shall ensure that the Investigator obtains information concerning the claims originally accepted by the Agency, as well as the amended September 14, 2017 claim granted by the AJ’s July 8, 2019 Order. The Investigator shall obtain an affidavit from Complainant regarding these claims, as well as any documentary evidence in support of the claims Complainant wishes to submit. To the extent they are relevant to the accepted claims and are not overly duplicative, the Investigator shall also obtain statements from other witnesses identified by Complainant. 2. The Agency shall complete the supplemental investigation within ninety (90) calendar days from the date this decision is issued and shall provide Complainant with a supplemental report of investigation. Based on the evidence gathered during both the initial and supplemental investigations, the Agency shall issue a new final decision on the complaint within sixty (60) calendar days of its issuance of the supplemental report of investigation. 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. 2020000823 8 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 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). 2020000823 9 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 July 7, 2021 Date