Wyatt W.,1 Complainant,v.Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Apr 17, 2019

2019001257 (E.E.O.C. Apr. 17, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Wyatt W.,1
Complainant,

v.

Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 2019001257

Hearing No. 550-2017-00286X

Agency No. HS-FEMA-26673-2016

DECISION

On November 19, 2018, 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
November 16, 2018 final order 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.

BACKGROUND

During the relevant time, as part of a professional opportunity, Complainant was detailed to a
SES position at the Environmental Protection Agency (EPA). While on detail as a Response
Division Director, Complainant’s basic pay and benefits were still paid by the Federal
Emergency Management Agency (FEMA) (hereinafter “the Agency”).

On June 22, 2016, the Agency denied his advance request for compensatory time for travel.
Believing that the denial was in reprisal for his prior protected EEO activity, Complainant filed a
formal complaint on September 6, 2016.

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.
2019001257

2
When the Agency failed to timely conduct an investigation into his complaint, Complainant
requested a hearing before an EEOC Administrative Judge.

In March 2017, while the matter was pending before the AJ, the Agency was ordered to complete
an investigation and produce a Report of Investigation. The Agency failed to do so. In May
2017, the AJ issued an Order to Show Cause regarding the Agency’s continued failure to conduct
an investigation. One year later, on May 25, 2018, the AJ issued a Default Judgment against the
Agency for its “extraordinary failure to investigate [Complainant’s] claim of discrimination as
required by regulation.”

The parties were provided thirty days to produce evidence of a prima facie case of reprisal, to be
considered by the AJ in determining the relief to award Complainant. After receiving the
parties’ submissions, the AJ found that a hearing was not necessary. On October 9, 2018, the AJ
issued an Order on Relief. Complainant was found to have established a prima facie case of
reprisal based on the AJ specifically noting the temporal proximity between Complainant’s prior
EEO activity and the June 22, 2016 denial of compensatory time. She awarded Complainant
$5,000 in non-pecuniary compensatory damages.

On November 16, 2018, the Agency issued a decision fully implementing the AJ’s decisions.2

Complainant filed the instant appeal.

ANALYSIS AND FINDINGS

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that
a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other
words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”).

2 On November 26, 2018, the Agency issued an “Errata” correcting an error in the final decision
regarding the amount of damages. Specifically, the decision cited the amount of damages
awarded as $10,000 instead of $5,000.
2019001257

3

As an initial matter, we consider the Agency’s assertion that Complainant’s appeal is untimely
filed and therefore should be dismissed. EEOC Regulation 29 C.F.R. § 1614.402 provides that
appeals to the Commission must be filed within 30 calendar days after complainants receive
notice of the agency's decision. The Agency argues that Complainant received its final decision
by email on November 16, 2018, and three days later requested an extension from the
Commission for filing an appeal. The request was denied and, according to the Agency,
Complainant did not file his appeal until December 18, 2018.

The Agency’s reading of Complainant’s November 19, 2018 submission to the Commission is
erroneous. Complainant’s correspondence plainly states, “I am providing notice of an appeal in
this case as well as requesting an extension . . . to file my appeal brief.” Therefore, the
Commission considers the appeal to have been filed on November 19, 2018. Although we
denied his request for an extension to file a brief, the appeal itself was timely filed.

On appeal, Complainant argues that he was been subjected to many years of continued
harassment.3 In response, the Agency contends that the sole issue before us is the allegedly
discriminatory denial of compensatory time for travel on June 22, 2016, and not whether to
“compensate Complainant for ongoing reprisal claims he has experienced since 2010, which
[are] the subject of other EEOC cases.”

The record reflects that Complainant described a “pattern of retaliatory harassment since 2011”,
as well as the “recent” withholding of compensatory travel pay, in his formal complaint.
However, the Agency framed the matter to be investigated as the June 22, 2016 incident.4
Similarly, in her decision, the AJ expressly noted that, although Complainant “provided
extensive briefing about alleged retaliatory harm from 2010 to present, the issue accepted for
investigation is narrow . . .” and only includes the travel compensatory time incident. In
awarding Complainant $5,000 in non-pecuniary damages, the AJ reiterated the award was to
remedy the one instance of reprisal and not alleged ongoing retaliation that “has been the subject
of other EEOC cases.”

The Commission finds that the AJ’s decision to award Complainant $5,000 in compensatory
damages, following a default judgment, was proper.

3 The instant record does not include the initial statement from Complainant, referenced by the
Agency in its response to the appeal. Nevertheless, we are able to properly conduct our
consideration of the matter based upon the information provided elsewhere in the record,
including Complainant’s “Response to Agency’s Statement in Opposition to Appeal.”

4 In the correspondence, dated March 2, 2017, accepting the matter for investigation, the Agency
also informed Complainant “If you are not satisfied with the claim as identified, you will have
five calendar days from your receipt of this letter to submit written clarification of your claim.”
There is no evidence that Complainant disputed the framing of the claim.
2019001257

4
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision to fully implement the AJ’s May 25 and October 9, 2018 decisions.

ORDER
To the extent it has not already done so, the Agency is ordered to pay Complainant $5,000 within
thirty (30) calendar days of the date this decision was issued. As provided in the statement
below, the Agency must send evidence of its completed action to the Compliance Officer.
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. 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.

2019001257

5
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.
2019001257

6
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 17, 2019
Date