0120140315
12-23-2016
Regena L.,1 Complainant, v. Jeh Johnson, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Regena L.,1
Complainant,
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120140315
Hearing No. 450-2013-00067X
Agency No. HSCBP221372012
DECISION
On October 18, 2013, Complainant filed an appeal from the Agency's August 5, 2013, final order concerning her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems this appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).2 For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the complaint for a hearing.
ISSUE PRESENTED
The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly granted the Agency's Motion to Dismiss Complainant's complaint of discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs and Border Patrol Officer at the Agency's Port of Entry in Eagle Pass, Texas. In 2007 and 2008, Complainant applied for Temporary Supervisor positions multiple times; the latest on March 24, 2008. Complainant reportedly heard rumors that her application had not been received, and so she asked a union representative to follow up. Complainant alleges that the Assistant Port Director (APD) stated that he would not address Complainant's questions, and that she stopped applying because she was afraid of how the APD would treat her.
In fiscal year 2010, Complainant was selected for the Tactical Analysis Unit (TAU), an assignment expected to last three years. In May 2010, Complainant was informed that she was being reassigned to the Railroad/Cargo Unit because it had started a 24 hour per day operation and needed additional personnel. This rotating assignment lasted for 14 months. In late June 2011, the APD informed Complainant that the TAU would be downsized and that she would be reassigned to another team. Complainant was assigned to the Commercial Outbound team in August 2011.
On February 14, 2012, Complainant received an email announcement that applications were being accepted for a temporary assignment to the TAU. Complainant alleges that since she was previously assigned that position, she should have been placed into it, without having to apply for it.
In February 2012, Complainant's supervisor (S1) asked if Complainant were interested in attending Outbound Enforcement Training (OET). She responded that she was interested. Complainant was selected to attend OET but when she learned of the dates of the training, she informed S1 that she would not be able to attend because the dates conflicted with a memorial service for a close friend. Complainant submitted a memorandum explaining her situation to S1 on March 1, 2012. The next day, the training supervisor (TS) sent Complainant an email stating that the APD was inquiring about the date and location of the memorial service. Complainant went to the APD's office to speak with him. Shortly afterwards, the APD sent Complainant an email stating that she did not need to respond to TS's email because that was sent prior to his receiving a copy of Complainant's memorandum.
On May 11, 2012, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment on the bases of sex (female), age (52), and reprisal for prior protected EEO activity (acting as a representative for her husband's EEO case in 2003) when:
1. In 2007 and 2008, on multiple occasions, she was not selected for temporary Supervisory Custom and Border Patrol Officer assignments;
2. In May 2010, she was assigned to a 14-month, part-time rotation to the Railroad/Cargo Unit;
3. In August 2011, she was reassigned from the Tactical Analysis Unit (TAU) to the Commercial Outbound Team;
4. In February 2012, she was not selected for a temporary assignment to the TAU; and
5. On March 1, 2012, the APD requested personal details concerning a memorial service that she planned to attend.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. Complainant timely requested a hearing.
On February 11, 2013, Complainant filed a Motion to Amend to include two additional allegations of discrimination based on reprisal (filing of the instant EEO complaint) when:
6. On February 9, 2013, the APD issued an order to supervisors not to call Complainant on weekends to cover significant port cases and arrests; and
7. Complainant was denied the opportunity to earn premium pay when she was denied the opportunity to cover significant port cases and arrests on the weekends and after duty hours.
Over Complainant's objections, the AJ assigned to the case granted the Agency's May 29, 2013, Motion to Dismiss on June 24, 2013. The AJ found that claims 1, 2, and 3 were untimely because Complainant did not contact an EEO counselor until March 28, 2012, well after the 45-day deadline. The AJ dismissed claim 4 when she determined that Complainant had not applied for the assignment and had not shown that the Agency actively discouraged or deterred her from applying. With regard to claim 5, the AJ found that Complainant had failed to state a claim. Accordingly, the AJ granted the Agency's motion to dismiss the complaint. The AJ did not address Complainant's Motion to Amend and it is unclear why she did not consider the proposed amended claims.
Complainant then filed the instant appeal, and submitted a brief in support of the appeal on November 20, 2013. The Agency filed a reply to her appeal on December 18, 2013, requesting that the Commission deny Complainant's appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the AJ misapplied the law when she issued the order dismissing her complaint in that she:
1. Failed to address Complainant's motion to amend, filed on February 11, 2013;
2. Improperly regarded claims 2 and 3 as alleged discrete acts of discrimination;
3. Improperly analyzed claim 4 by stating that Complainant had not applied or expressed interest in the position when the record shows that she raised the issue with her supervisors; and
4. Improperly analyzed claim 5 as a request for leave, and not as an incident of harassment.
According to Complainant, these events are not discrete acts of discrimination, but are all "common threads of a continuing practice creating a hostile work environment" by the APD.
ANALYSIS AND FINDINGS
The fragmentation, or breaking up, of a complainant's legal claim during EEO complaint processing has been a significant problem in the federal sector. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, at � III (Aug. 5, 2015). A claim refers to an assertion of an unlawful employment practice for which, if proven, there is a remedy under the federal equal employment statutes. Id. Fragmentation often results from a failure to distinguish between the claim the complainant is raising and the evidence (factual information) she is offering in support of that claim. Id. When each piece of factual evidence (usually consisting of a single incident) is identified as a separate and distinct legal claim, it ignores the complainant's real underlying issue of a pattern of ongoing discrimination. Id. For complainants, fragmented processing can compromise their ability to present an integrated and coherent claim. Id. The fragmentation of EEO claims must be prevented at all levels of the complaint process. Id.
In Complainant's case, we find that the AJ erred when she improperly fragmented Complainant's ongoing hostile work environment claim into separate discrete acts and then dismissed all the claims on various procedural grounds. Additionally, we find that the AJ erred when she failed to rule on Complainant's Motion to Amend to include two additional claims of reprisal discrimination, which was before her prior to her issuing the Order Granting the Agency's Motion to Dismiss Claims. Accordingly, we will reverse the Agency's final order dismissing Complainant's complaint and remand the case for a hearing.
CONCLUSION
Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission finds that Complainant's complaint was fragmented and improperly dismissed. The Commission therefore REVERSES the Agency's final order and REMANDS the matter to the Agency in accordance with this decision and the ORDER below.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Dallas District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and 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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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 (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
_12/23/16_________________
Date
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.
2 The Agency stated that it did not receive a copy of the AJ's June 24, 2013, Order Granting Motion to Dismiss until September 16, 2013. When the Agency failed to issue a final order within forty days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. � 1614.109(i) on August 5, 2013. However, because the AJ's order did not contain Complainant's appeal rights, the Agency informed Complainant of her right to appeal on September 17, 2013.
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0120140315