Ross R.,1 Complainant,v.Chad R. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

Aug 11, 2020

2019002519 (E.E.O.C. Aug. 11, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ross R.,1 Complainant, v. Chad R. Wolf, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019002519 Agency No. HS-ICE-00991-2011 DISMISSAL OF APPEAL On June 10, 2011, Complainant, a Criminal Investigator, GS-1811-13, at the Agency’s Office of Investigations in Norfolk, Virginia, filed a complaint in which he alleged that he was subjected to discrimination and a hostile work environment on the bases of race (African-American) and in reprisal for prior protected EEO activity as evidenced by multiple incidents. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter held a hearing and issued a decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. In Ross R. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120162491 (July 25, 2018), req. for recon. den’d EEOC Request No. 2019000051 (Dec. 20, 2018), the Commission affirmed the final order. The Commission found that the Norfolk Office was wrought with racial insensitivity, racial stereotyping and epithets, office gossip, and personality conflicts; however, Complainant failed to show that he personally was subjected to the offensive conduct at issue. The Commission concluded that Complainant did not witness the racially-insensitive conduct nor was the conduct directed at him, but substantial record evidence demonstrated that other African-American employees were subjected to the conduct based on their race. 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. 2019002519 2 To correct the conduct, the Commission ordered the Agency to provide training to the responsible management officials, to consider disciplining the responsible management officials, and to post a notice. In the instant appeal, Complainant contended that because he was able to establish that discrimination had occurred, he was a prevailing party for the purpose of awarding attorney’s fees even though no specific relief was awarded to him personally. To be considered a prevailing party, Complainant must show that he substantially received the relief sought and that the relief modified the agency’s behavior in a way that directly benefited him. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, Chapt. 11, § VI(B) (Aug.5, 2015). Complainant received none of the relief sought. The cases on which he relies to support his contention that he is a prevailing party, Bell v. Dep’t of the Navy, EEOC Appeal No. 0720080024 (June 25, 2008) and Call v. Dep’t of Transp., EEOC Appeal No. 0720070017 (Oct. 25, 2007), are distinguishable from the case now before us. In Bell and Call, the complainants were found to be prevailing parties despite not having received all of the relief they had asked for. The Commission determined in both cases that even though discrimination against the complainants had occurred, they would not have received the positions they had applied for even in the absence of discrimination. In the instant case, by contrast, the Commission found that while racially hostile and offensive conduct had occurred, other African-American employees were subjected to it, not Complainant. Consequently, the corrective actions ordered by the Commission in EEOC Appeal No. 0120162491 were not ordered as remedies for Complainant personally. We therefore agree with the Agency that Complainant is not a prevailing party. Consequently, his appeal must be DISMISSED. See Terese D. v. Dep’t of Homeland Security, EEOC Appeal No. 0120160927 (Sept. 14, 2017), req. for recon. den., EEOC Request No. 0520180057 (Feb. 15, 2018). 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 2019002519 3 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 (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, 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. 2019002519 4 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 August 11, 2020 Date