0120162081
10-26-2016
Trey M.,1 Complainant, v. John O. Brennan, Director, Central Intelligence Agency (CIA), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Trey M.,1
Complainant,
v.
John O. Brennan,
Director,
Central Intelligence Agency (CIA),
Agency.
Appeal No. 0120162081
Agency No. 16-18
DECISION
On June 9, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission from a final Agency decision (FAD) dated May 11, 2016, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Staff Officer at another agency - the Defense Intelligence Agency (DIA) in Washington, DC.
Complainant's career track required that he attend a school hosted by the Agency (CIA) and pass a 21-week course. The cost per student is between $150,000 and $200,000. After the DIA repeatedly and intensively screened Complainant, the DIA approved his attendance. He attended from January 2011 to May or June 2011, but was cut for not passing requirements. According to Complainant, he survived the first round of cuts.
On October 12, 2012, Complainant filed a formal complaint against DIA, as amended, alleging, in relevant part, that it discriminated against him based on disability when:
I. In April 2010, DIA denied him a reasonable accommodation for the course, and neglected to inform the Agency (CIA) that he had a disability;
II. On November 29, 2012, DIA denied in writing his reasonable accommodation request to retake part or all of the course starting in January 2013;
III. On November 29, 2012, DIA failed to respond to his request that he be provided reasonable accommodation in the course, including the use of everyday assistive technologies such as the spell check feature of in word processing, use of voice activated software for written expression, and to take tests in a distraction free environment.
DIA dismissed issue I for failure to timely initiate EEO counseling. It reasoned that Complainant first initiated EEO counseling with intent to file a complaint on June 19, 2012, beyond the 45 calendar day time limit. DIA accepted issues II and III for investigation. Commission computerized records reflect that in July 2013, Complainant requested a hearing before an Equal Employment Opportunity Administrative Judge on his DIA complaint - when more than 180 days elapsed after he filed his complaint. Thereafter, DIA completed the EEO investigation. The hearing request is still pending before the EEOC's Washington Field Office.
On or about March 8, 2016, Complainant filed an EEO complaint against the Agency (CIA) alleging that he was discriminated against based on his disability when he learned on October 7, 2015, that:
1. From January 2011 to June 2011, the CIA denied him a reasonable accommodation in the above course;2 and
2. The CIA denied him the opportunity to retake the above course.
Complainant's second line DIA supervisor stated that the school with the course is a Department of Defense (DOD) - CIA training facility. DIA ROI, 506. He indicated that a number of agencies participate in managing and/or teaching the course - the CIA, DIA, DOD, and the Federal Bureau of Investigation. DIA ROI, 466, 485, 494.
The CIA dismissed the complaint against it for failure to timely initiate EEO counseling. It reasoned that Complainant initiated EEO counseling with the CIA in November 2015, beyond the 45 calendar day time limit. In his complaint, Complainant argued for an extension of the 45 day time limit. Specifically, he argued that he did not know the Agency had a part in the denials in issues 1 and 2 until he was able to review the DIA report of investigation (ROI) on October 7, 2015. The Agency countered that Complainant indicated in his June 2012 DIA complaint that he knew the school was hosted by the CIA. See DIA ROI, at 16. The Agency also pointed out that in the DIA counselor's report, the EEO counselor wrote that the DIA Chief of Screening & Selection Division, a psychologist, said she was not in a position to grant or deny reasonable accommodation for the course because it was not within DIA's jurisdiction. Our review of the DIA counselor's report did not reveal such language - rather the psychologist said that even if she knew Complainant had a disability before taking the course, she would not have passed this along to the school because it could bias the instructors. DIA ROI, at 33.
The Agency also pointed to DIA's November 29, 2012, letter denying Complainant's reasonable accommodation request to retake part or all of the course. According to the Agency, in the letter DIA wrote that Complainant's request was denied because of his medical information and CIA course policy. We note that in the letter DIA did not mention the CIA by name, the name of the school, or the name of the course, instead referring to a "...Service Training Program." DIA ROI, 251. The DIA's training program has a role in deciding who to send to take the course, and it is not clear to us whether the denial was referring to that.
In the CIA FAD, the Agency recounted that there is a letter from Complainant's attorney in the DIA ROI indicating that on September 6, 2013, he reviewed the DIA investigation transcribed statements - the same statements he relied on in arguing that Complainant did not learn until October 7, 2015, of the CIA's involvement in issues 1 and 2.
The DIA completed its ROI on or about September 27, 2013. On appeal, Complainant's attorney argues that due to the lengthy process to obtain a security clearance, he was not able to review the DIA ROI until October 7, 2015, and Complainant did not receive a copy thereof himself. The attorney argues that while he was able to review certain unfinished and redacted statements by DIA officials on September 6, 2013, there were no references whatsoever to the CIA.
Complainant argues that while he knew the school was hosted by the CIA, he did not know the CIA was involved in the decision to deny him reasonable accommodation or allow him to retake part or all the course - he believed this was DIA's decision. This is consistent with the statements he made to the DIA EEO counselor and his writings in the DIA ROI - that the DIA denied him these things.
Our review of the DIA ROI did not reveal any DIA officials stating that before Complainant took the course they approached the CIA asking for reasonable accommodation on Complainant's behalf and it was denied. Rather, the DIA psychologist stated that after Complainant requested reasonable accommodation, in 2012 she called the school and was advised they would not provide accommodation for Complainant. DIA ROI, 572 - 575. She further stated that the course was not under the jurisdiction of DIA, so DIA did not have the jurisdiction to provide or deny accommodations therein. DIA ROI, 556.
The psychologist's first line supervisor, the DIA Chief of the Office of "...Training," denied Complainant's request to retake the course. DIA ROI, 756. He explained that he made this decision after consulting with the school and being informed Complainant had deficiencies in multiple areas which could not be remediated. DIA ROI, 764 - 765, 774 - 775. He stated if DIA asked the school to readmit Complainant, the school would have denied the request because he was not qualified. DIA ROI, 770. The psychologist stated that her supervisor made the decision to deny Complainant retaking the course in conjunction with the school. DIA ROI, 598. A DIA Branch Chief of Career Management stated that Complainant was denied retaking the course because DIA did not make the recommendation that he do so since this required approval by those running the course and CIA's agreement, and this was not given. DIA ROI, 694.
On appeal, Complainant, citing case law, further argues that the time limit to initiate EEO counseling should run from when he initiated counseling with the DIA, not the CIA.
In opposition to the appeal the CIA argues that its FAD should be affirmed for the reasons stated therein. It adds that there were additional reasons Complainant should have formed a reasonable suspicion of discrimination against the CIA long before he initiated contact with the CIA EEO counselor. It points to language in Complainant's July 2013 declaration that his second line DIA supervisor and the DIA psychologist stated the Agency could not dictate the accommodations the course provided. Complainant wrote that he responded to them that DIA should have requested such accommodations from the CIA. DIA ROI, 342. The Agency also points to a request Complainant's attorney made in July 2013 to the EEO investigator on the DIA case that Complainant's second line DIA supervisor be asked if he coordinated with the course host to identify its policy on providing reasonable accommodation. DIA ROI, 328.
The Agency also questions Complainant's argument that the time limit to initiate EEO counseling should run from when he initiated counseling with the DIA, not the CIA. Further, it argues that even if this is true, while he would be timely with issue 2, he would not be timely with issue 1. The Agency further argues that the doctrine of laches should apply because Complainant waited two to four years to contact the CIA about his claims. The Agency also argues that issues 1 and 2 should be dismissed for stating the same claims raised against the DIA, which are pending a hearing. It argues that if issues 1 and 2 were remanded to the Agency for an investigation, the DIA and CIA cases on the same underlying incidents could result in inconsistent or conflicting judgments.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2).
Here, according to the DIA FAD, Complainant initiated EEO counseling with the DIA with intent to file an EEO complaint on June 19, 2012. While at this point we will leave it to the discretion of the AJ, there is a strong argument for joining the Agency as a party in the DIA case. The CIA hosted the school where Complainant was allegedly denied reasonable accommodation when he took the course in 2011, and there is some evidence that the DIA consulted with or even made the decision in conjunction with the school and the CIA in denying Complainant the opportunity to retake the course. Further, as argued by the Agency, having two separate cases could result in conflicting judgments on the same underlying incidents - albeit we disagree that this is ground for dismissal since different parties are involved.
We agree with Complainant that the date he initiated EEO counseling with the DIA (with intent to file a complaint) should be used in determining timeliness. Here, Complainant initiated EEO counseling with the logical EEO office - the DIA - where he was employed. Given this, there was no obligation for him to also initiate EEO counseling with the CIA. Byrd v. Department of Agriculture, EEOC Request No. 05900291 (May 30, 1990); Pierce v. Department of State, EEOC Appeal No. 0120110631 (June 16, 2011). However, we decline to make rulings on timeliness at this point. Should the AJ agree to join the CIA as a party, the AJ will have jurisdiction over timeliness determinations.
Also, we decline to apply laches. First, Complainant did not sit on his case - he actively pursued it with the DIA. Second, at the time Complainant first pursued his case with DIA to October 7, 2015, he had reason to believe DIA was the primary mover behind the actions against him, and the CIA's role was murky.
The FAD is REVERSED. The Agency shall comply with the Order below.
ORDER
Within 30 calendar days of the date this decision is issued, the Agency and Complainant shall jointly provide the EEOC AJ assigned to Complainant's pending DIA case with a copy of this decision, and a brief explanation for why they are doing so.3
If Complainant wishes to pursue his case against the CIA, he shall file a motion with the above AJ to join the CIA as a party in his DIA case within 45 calendar days after the date this decision is issued. If the AJ grants the motion, the AJ may further develop the case as the AJ sees fit - including ordering the CIA to conduct an investigation and/or allowing the parties to engage in discovery.
If the AJ denies Complainant's motion to join the CIA, within 45 calendar days after the denial the Agency shall either accept Complainant's complaint in whole or part or issue a new FAD dismissing the entire complaint.
A copy of the joint letter by Complainant and the Agency 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 (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
October 26, 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 The Agency defined issue 1 as occurring from January 2011 through March 2011, and denying him the reasonable accommodation of more time to complete activities. In his complaint, Complainant wrote the denial occurred January 2011 to June 2011, and did not limit the denial to more time to complete activities.
3 The case is before EEOC's Washington Field Office. The DIA Case number is DIA-2012-00069. The EEOC Hearing No. is 570-2013-00907X.
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