0120161066
04-19-2016
Rigoberto A.,1 Complainant, v. Gina McCarthy, Administrator, Environmental Protection Agency, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rigoberto A.,1
Complainant,
v.
Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120161066
Agency No. 2015-0101-HQ
DECISION
On January 20, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency's decision (FAD) dated December 30, 2015, dismissing his complaint of unlawful employment discrimination in violation of an unspecified statute enforced by the EEOC.2
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Agent (Criminal Investigator), GS-13 at the Agency's USA EPA Region 3 in Philadelphia, Pennsylvania. Part of his job is to testify in court in cases prosecuted by Department of Justice, U.S. Attorneys' Offices.
On September 15, 2015, Complainant filed a formal complaint alleging that he was harassed and discriminated against based on reprisal for his prior protected EEO activity when on July 10, 2015, he learned that the Agency sent to U.S. Attorneys' Offices his January 26, 2012, Notice of Proposed Removal charging him with a lack of candor and making unfounded negative statements about a supervisor, other derogatory information -- false statements by Agency managers and other false allegations, and his personal medical records.
In her report, the EEO counselor indicated that the Agency's Head of the Legal Division of the Criminal Investigation Division explained the following: Complainant lied about management constantly, this was well documented, and he gave information regarding Complainant's untrue statements to U.S. Attorneys' Offices. He did so pursuant to Giglio v. United States, 450 U.S. 150 (1972), which requires prosecutors to turn over exculpatory information to a criminal defendant before trial which could tend to impeach a witness - including information about the credibility and veracity of the testimony of law enforcement officers. He elaborated that the Department of Justice has a "Giglio policy" requiring investigative agencies to provide it with information which might be subject to Giglio - what the policy labels "potential impeachment information." Complainant controverts that Giglio required the release.
Previously, on December 18, 2013, Complainant and the Agency entered into a settlement agreement closing prior EEO and Office of Special Counsel complaints. It provided, in relevant part that:
4. EPA also agrees to the following:
a. Within thirty (30) days of the date of this agreement is signed... EPA will expunge from Agency records the Notice of Proposed Removal dated January 26, 2012, issued to [Complainant], with the exception of copies of such document, if any, maintained by the EPA Office of Inspector General, and the EPA Office of Civil Rights, and by the EPA Office of General Counsel (OGC) as part of the record of [Complainant's] OSC complaint maintained by OGC....
e. EPA will advise any U.S. Attorney's Office during any future discussions regarding this matter that the Agency ultimately did not find that [Complainant] engaged in a lack of candor.
On August 6, 2015, Complainant filed a notice of breach with the Agency's Director, Office of Civil Rights. He alleged that the Agency breached term 4(a) of the settlement agreement to expunge his Notice of Proposed Removal as evidenced by it sending it to several U.S. Attorneys' Offices.
The Agency dismissed the September 15, 2015, complaint for stating the same as Complainant's breach of settlement claim, which was being processed.
On appeal, Complainant argues that the FAD should be reversed. In opposition to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
In finding that Complainant's complaint stated the same claim as his prior notice of breach claim, the Agency mischaracterized the complaint. In his complaint, Complainant did not only raise the release to U.S. Attorneys' Offices of his proposed removal - he also alleged that the Agency sent to U.S. Attorneys' Offices false statements made by Agency managers, other false allegations, and his personal medical records. Further, the entire dismissal misses the mark. While the crux of Complainant's breach claim is that the Agency failed to expunge the Notice of Proposed Removal, as agreed, the crux of his EEO complaint is the retaliatory provision to U.S. Attorneys' Offices of his Notice of Proposed Removal, other derogatory information, and his medical records. These are not identical claims, nor are they mutually exclusive. We note that the settlement agreement did not require the expungement of the Notice of Proposed Removal from all Agency records.
The FAD is REVERSED.
ORDER
The Agency is ordered to process the remanded EEO complaint, as redefined herein, 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 becomes final. 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 becomes final, 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.
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 (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 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
April 19, 2016
__________________
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 Complainant alleges reprisal for prior protected equal employment opportunity (EEO) activity, but the record does not yet reflect which statute(s) are implicated. On remand, the statute(s) should be identified.
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