0120160627
04-26-2018
Wilmer M.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilmer M.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Appeal No. 0120160627
Hearing No. 520201400302X
Agency No. HSFEMA224332012
DECISION
Complainant filed a timely appeal, pursuant to 29 C.F.R. � 1614.403, from the Agency's November 6, 2015, final decision 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., 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
At the time of events giving rise to this complaint, Complainant was employed as a Reservist Disaster Assistance Employee ("DAE"), Project Specialist, for the Federal Emergency Management Agency ("FEMA") Region II based in New York, New York.
On June 2, 2012, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of physical disability (cancer), age (69), and reprisal (engaging in prior EEO activity) when: on April 13, 2012, he received a non-reappointment letter.
After investigating his complaint, the Agency provided Complainant with a copy of the report of investigation ("ROI") and notice of his right to request a hearing before an Equal Employment Opportunity Commission ("EEOC" or "Commission") Administrative Judge ("AJ"). Complainant timely requested a hearing. On January 2, 2015, the AJ assigned to the case dismissed Complainant's hearing request, as sanctions for Complainant's failure to comply with an Order and his lack of response to the Agency's discovery requests during the pre-hearing stage of the process. The AJ remanded the matter back to the Agency for a Final Agency Decision ("FAD"), pursuant to 29 C.F.R. � 1614.110(b), with appeal rights to the Commission.
At the time of the alleged discrimination, Complainant had been employed by the Agency for 11 years and had been a Reservist, DAE Project Specialist (or Project Officer) since 2004. The Agency's hiring authority for reservists was governed by the Robert T. Stafford Disaster Relief and Emergency Assistance Act ("Stafford Act"). See FEMA Instruction No. 8600.1 (Jun. 21, 1991). Their purpose was to provide intermittent, short term assistance during two year appointments by "perform[ing] disaster field activities directly related to specific disasters, emergencies, projects, or activities of a noncontinuous nature." Complainant, a licensed engineer, specialized in infrastructure, particularly water/plant treatment. By Complainant's account, he never refused a deployment as DAE Reservist.
Complainant's first level supervisor was the PA Cadre Manager ("S1") (54, disability status and prior EEO activity unspecified), and his second level supervisor was the Deputy Director for Region II, ("S2") (62, disability status and prior EEO activity unspecified). While deployed, Complainant was to report to the Emergency Management Program Specialist, Recovery Division, Public Assistance (54, disability status and prior EEO activity not specified) ("S3"). Neither S1, nor S3 had ever seen or met Complainant. S2 describes his supervisory relationship with Complainant as "very friendly."
On April 13, 2012, Complainant received a letter signed by S1, dated April 2, 2012, with the subject "Non-Reappointment as a Reservist (DAE)." The Letter stated, "[p]er the Stafford Act and the Conditions of Employment, you have not been reappointed. You are free to apply for an appointment within another Cadre." S1 noted that Complainant was one of 22 DAEs in his Cadre that received Non-Reappointment Letters. All three supervisors deny any knowledge about why Complainant received the letter. S2 stated that he had no recollection of providing Complainant with the procedures necessary to be considered for reappointment, and was never involved with the reappointment process. "[S1] may have been part of the reappointment process, however, this direction came from FEMA HQ." However, S1 revealed that he also had an impact on reappointments, stating, "[w]e gave HQ a list of those being appointed or not reappointed." S1 then explains that Complainant was invited to apply to a different Cadre because there were no openings in his prior Cadre.
Complainant disputes S1 and S2's statements that they did not know about the non-reappointment letter, as well as allegations that Complainant never contacted them to obtain directions for reappointment or an explanation for his non-reappointment. Prior to the instant complainant, in or around early 2011, Complainant and a DAE Reservist colleague ("C1") repeatedly contacted S1 and S2, alleging that FEMA was not properly utilizing its resources by assigning individuals with expertise in infrastructure (i.e. C1 and Complainant) to clerk and administrative level positions. They also alleged that younger, less qualified DAEs were assigned to infrastructure positions, even though they had more expertise, and alleged that S1 did not base deployments and assignments on qualifications, but rather relationships, as he hired family and friends to DAE positions and allegedly showed favoritism toward them. Complainant also submitted a memo critiquing the Agency's work assignment practices for reservists, and both he and C1 sent correspondence to S1. S1 did not respond, and beginning in February 2011, S2 allegedly stopped responding as well.
In its FAD, the Agency found that Complainant failed to establish discrimination as alleged. On appeal, Complainant disputes both the FAD and the AJ's dismissal of his hearing request.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (Aug. 5, 2015) ("EEO-MD 110") (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Inadequate Investigative Record
We cannot issue a decision on whether Complainant was subjected to discrimination on the bases of age, disability and/or reprisal because the investigative record is incomplete. See generally, Stewart v. Dep't of Homeland Sec., EEOC Request No. 0520070124 (Nov. 14, 2011); O'Neill v. Dep't of State, EEOC Appeal No. 0120083597 (Jan. 15, 2009). Agencies are required to develop impartial and appropriate factual EEO records in accordance with 29 C.F.R. � 1614.108(b). See MD-110, Ch. 6, � I. An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough. "This means identifying and obtaining all relevant evidence from all sources regardless of how it may affect the outcome." MD-110, Ch. 6, � V.D. "To ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigation allows for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." Id.
Here, the record is missing evidence to support the Agency's proffered legitimate nondiscriminatory reason for the alleged discriminatory action, as well as information regarding essential elements of Complainant's prima facie case. See Anisa U. v. United States Postal Serv., EEOC Appeal No. 0120141580 (Jul. 20, 2016). A Memorandum to the Record by the EEO Investigator, as well as the Agency's request, prior to issuing the FAD, that FEMA conduct a supplemental investigation, indicate that the Agency was aware of the deficiencies and attempted to obtain the necessary information. However, in its "Notice of Intent to Issue Final Agency Decision," the Agency, citing FEMA's lack of response or request for extension, decided to issue the FAD anyway, in violation of 29 C.F.R. � 1614.108(b).
The Commission reminds the Agency that it must provide a specific, clear, and individualized explanation for its action so that Complainant is provided with an opportunity to prove that the Agency's explanation was a pretext for discriminatory animus. See Boston v. United States Postal Serv., EEOC Appeal No. 0120042074 (May 26, 2004). "To accomplish this, the [Agency] must clearly set forth, through the introduction of admissible evidence" the reasons for its action. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56 (1981). The April 2, 2012 non-reappointment letter does not specify why Complainant was not reappointed, only that the Agency was acting in accordance with the Stafford Act. Two of Complainant's three supervisors identified in the record, S2 and S3, had "no knowledge" of Complainant's non-reappointment. Although S1 signed the letter, he states that it was issued by an HR Specialist, standard protocol after a reservist fails to re-apply for appointment. S1 clarified, "I don't know [Complainant] in person... there were about 22 people that received non-reappointment letters and I think [Complainant] was one of them." S1 also explained that these non-appointment letters were "released at the same time for the same reason, Expiration of Appointment," and submitted the list for the record.
The list of the 22 DAE Reservists who received non-reappointment letters, including Complainant, lacks comparative class information, and makes no reference to the reservists' appointment terms, let alone their failure to apply for reappointment. Instead, a comment section next to each DAE reservist's name explains why they are "not deployable." Based on the comments, it appears that a number the reservists left prior to the expiration of their appointments. Four were "released for poor performance," one "requested" to be removed from the deployment list, and seven were no longer available due to work schedules. The remaining reservists on the list appeared to be disqualified from future deployment, seven for performance reasons, one who had not been verified as an employee of the Agency, and two-including Complainant--that were simply listed as "not deployable." The EEO Investigator made multiple requests to HR for a definition of "not deployable" within the context of this list and Complainant's complaint, with no response.
The evidence is not sufficient to create a "specific, clear, and individualized explanation" for the Agency's actions. The Agency failed to explain Complainant's "non-deployable" status, and how it relates to the alleged discriminatory act, the April 2, 2012 non-reappointment letter. Complainant disputes S1's explanation that the Letter was standard practice, arguing that he never had to apply for reappointment before. Complainant also contends that the EEO Investigator informed him that the Agency classified him as "not-deployable" because of his cancer diagnosis, even though Complainant did not request reasonable accommodations and was able to do DAE work. Significantly, there are no personnel documents containing Complainant's appointment dates or his prior reappointment applications in the record. S1's statement indicates that the Agency should have three previous reappointment documents signed by Complainant, along with the signed "Conditions of Employment Form" referenced in the April 2, 2012 Letter. The Agency does not address the closing statement in the letter, that offers Complainant the opportunity to apply to another cadre rather than reapply for his current cadre. "HQ was given a list of those being appointed or not reappointed. The National Cadre Manager decides on the number of required or desired number of employees he or she wants in the Cadre. [S1] states that no other reason except "Expiration of Appointment" was indicated on their Termination 52."
According to Complainant, based on his area of expertise, this would effectively block him from working for the Agency. On remand, the Agency will be directed to investigate the reasons for the its actions and collect supporting evidence.
Complainant's Request for a Hearing
Complainant's appellate brief states that he is "exercising his rights to a formal hearing." However, on January 2, 2015, as sanctions against Complainant, the AJ dismissed his hearing request "with prejudice," which means that Complainant no longer has the option to pursue this complaint through the hearing process. An AJ has inherent powers to conduct a hearing and issue appropriate sanctions. EEO-MD 110 Ch. 7, � III(D) (Aug. 5, 2015); Complainant v. Dep't of Commerce, EEOC Appeal No. 0120140776 (Feb. 13, 2015). AJs have broad authority over the conduct of hearings. 29 C.F.R. � 1614.109 et seq. If a party does not respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ must first issue a Notice to Show Cause to the non-complying party. EEO-MD-110, Ch. 7, � III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).
On June 23, 2014, in response to a Show Cause Order, Complainant notified the AJ that his wife of 50 years had been diagnosed with terminal cancer, and her care required his total attention. The AJ offered to dismiss Complainant's case "without prejudice" and he could re-file within 12 months. The AJ informed Complainant that this would be "the prudent thing to do" and explained that Complainant would not need to follow up with the Agency, he could simply contact the AJ to "pick up where we left off." Complainant responded by letter on July 22, 2014, explaining that his wife had since passed away, and he had an "overabundance of free-time and can resume [his] efforts to get reinstated with FEMA."
On December 3, 2014, the AJ issued another Show Cause Order to Complainant, for failure to respond to the Agency's September 4, and October 17, 2014 discovery requests. The AJ determined that Complainant's explanations regarding his wife's estate and his hospitalization for a broken hip that occurred after the discovery deadline, were not sufficient. Among other things, she cited Complainant's prior correspondence indicating he could continue with the hearing process, and his continued refusal to engage in discovery, after the Show Cause Order.
Having reviewed the record, including Complainant's correspondence with Agency Counsel and the AJ during the relevant time frame, we find the AJ did not abuse her discretion in issuing the sanctions. Therefore, at the conclusion the Agency's Supplemental Investigation, the Agency shall issue a FAD on the merits of Complainant's complaint, appealable to this Commission.
CONCLUSION
Accordingly, we VACATE the Agency's final decision and REMAND the matter for processing in accordance with this Decision and the following Order.
ORDER (C0610)
1. Supplemental Investigation - Within 120 days of the date of this Decision, the Agency shall conduct a supplemental investigation so that the ROI meets the requirements set forth in 29 C.F.R. � 1614.108(b) and our guidance in MD-110, Chapter 6. The investigation shall include, but will not be limited to, comparative data related to Complainant's protected classes, explanation by the appropriate Agency official of Complainant's "not deployable" status, and evidence to support specific, clear, and individualized explanation for the April 2, 2012 Non-Reappointment Letter. Complainant shall be afforded an opportunity to submit additional evidence for the record.
2. FAD - Within 150 days of the date of this Decision, the Agency shall issue a new Final Agency Decision on Complainant's complaint based on evidence in the ROI, including the Supplemental Investigation. The FAD shall include appeal rights to this Commission.
3. Compliance Report - The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented, including a copy of the Supplemental Investigation and FAD.
ATTORNEY'S FEES (H1016)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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. 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 26, 2018
__________________
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.
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