William G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120171754 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 William G.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Office of the Chief Financial Officer), Agency. Appeal No. 0120171754 Hearing No. 461-2013-00055X Agency No. OCFO-2009-01327 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 final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Management Specialist, GS-6, in the Agency’s Office of the Chief Financial Officer (OCFO), National Financial Center, in New Orleans, Louisiana. On December 10, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (black), 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. 0120171754 2 1. On September 14, 2009, he was harassed when Agency officials refused to allow him a reasonable amount of official time in order to work on EEO cases for himself and for others that he represents; and 2. Complainant further alleges that his requests for official time are not handled in the same manner as those of other employees. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On October 22, 2015, the AJ ordered a default judgment against the Agency. On December 17, 2015, the AJ conducted a hearing to determine whether Complainant established a prima facie case of discrimination and retaliation and the appropriate amount of damages. The AJ found Complainant established a prima facie case of retaliation. The AJ found Complainant did not establish a prima facie case of harassment on the bases of his race, sex, or color. The AJ also found the harassment was not so severe or pervasive as to alter the conditions of Complainant’s employment and create an abusive working environment. As relief, the AJ ordered the Agency to: pay Complainant $1,000 in nonpecuniary, compensatory damages; provide to the individuals responsible for processing EEO cases at the Agency’s EEO Office in Washington, D.C., two hours of training on their rights and responsibilities in processing EEO cases; post a notice of the finding of retaliation; and consider taking disciplinary action against the responsible management officials responsible for processing EEO cases. 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). ANALYSIS AND FINDINGS At the outset, we note Complainant does not challenge the Agency's finding that he did not establish a prima facie case of harassment on the bases of his race, sex, or color or that the harassment was not so severe or pervasive as to alter the conditions of his employment and create an abusive working environment. Thus, we will not address the propriety of the Agency's finding with regard to those issues. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. 0120171754 3 An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). We note the Agency asserts it paid Complainant $1,000 in nonpecuniary, compensatory damages on June 12, 2017, and produced evidence of such payment to Complainant. On appeal, Complainant does not dispute that he received this payment for nonpecuniary, compensatory damages. Therefore, we shall not order this payment. Additionally, the AJ ordered the Agency to train the individuals responsible for processing EEO cases at the Agency’s EEO office in Washington, D.C. with two hours of training on their rights and responsibilities in processing EEO cases. The Agency produced evidence that it provided two hours of “EEO Case Processing” training to the Office of Adjudication (OA) managers in Washington, D.C. on March 1, 2017, in compliance with the AJ’s order. Upon review, we find that the responsible management officials in the Agency’s New Orleans facility should also receive training on their rights and responsibilities in processing EEO cases. In a July 11, 2017 memorandum from the Chief, Employment Adjudication Division, the Agency states the Office of Adjudication will provide training to the OCFO Civil Rights office located in New Orleans, Louisiana on the rights and responsibilities of managers and personnel in the processing of EEO cases. However, we find there is no evidence that the OCFO Civil Rights office actually received training on their rights and responsibilities in processing EEO cases. Therefore, we shall order EEO training to the New Orleans facility. The Agency has produced evidence that it posted the notice as ordered in the AJ’s decision. Thus, we will not order the Agency to post the notice, as it has already done so. The record also contains a July 13, 2017 memorandum from the Branch Chief, Employee and Labor Relations Division stating that the office has initiated an inquiry to consider whether disciplinary action against the responsible management officials responsible for processing EEO cases is appropriate. The record does not contain further information concerning the outcome of this investigation. Complainant does not claim on appeal that he took leave as a result of the Agency’s actions. Moreover, Complainant does not claim on appeal that he is due any additional relief. Thus, we find the relief ordered by the Agency appropriate, as slightly modified by our Order herein. CONCLUSION Accordingly, we AFFIRM the Agency’s final action and order the Agency to implement the AJ’s relief, as slightly modified herein. 0120171754 4 ORDER To the extent it has not already done so, the Agency shall take the following actions: 1. Within 90 days of the date this decision is issued, the Agency shall provide eight hours of in-person or interactive training to the responsible management officials in its Civil Rights Office in New Orleans, Louisiana facility regarding the obligation not to restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings under, the Federal equal employment opportunity laws. 2. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against the management officials identified as being responsible for the discrimination perpetrated against Complainant. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation that the corrective action has been implemented. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618) 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. 0120171754 5 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 0120171754 6 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 December 19, 2018 Date Copy with citationCopy as parenthetical citation