U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leon B.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security, Agency. Appeal No. 2019005186 Hearing No. 570-2018-00200X Agency No. HS-HQ-01577-2017 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 May 14, 2019 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. For the following reasons, the Commission VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor at the Agency’s Office of the Inspector General in Atlanta, Georgia. On June 16, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), national origin (Nigerian), sex (male), color (black), and in reprisal for prior protected EEO activity when: 1. on April 7, 2017, he was counseled for “inappropriate conduct in the workplace” and was issued a written counseling on April 18, 2017; and 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. 20190051862 2. on April 18, 2017, he was issued a Performance Expectations memo, which cited his poor performance. At the conclusion of the investigation, Complainant was provided a copy of the investigative file on November 14, 2017, and he requested a hearing before an EEOC Administrative Judge (AJ) on November 16, 2017. Complainant received his fiscal year 2017 (FY17) performance appraisal on or about November 6, 2017, and he sent an “addendum” to amend his complaint to add this claim to the Agency’s EEO Office on November 17, 2017, and to the EEOC’s Atlanta District Office on November 22, 2017. On April 25, 2019, Complainant submitted to the AJ an “Order to Show Cause Why Summary Judgment Should Not be Entered.”2 Complainant noted that he sent his “addendum” on November 22, 2017, and he argued that discovery was needed on his FY17 performance appraisal claim. On May 14, 2019, the AJ issued a decision without a hearing, finding that the Agency did not discriminate against Complainant when he was counseled and issued a Performance Expectations memo. The Agency’s final action implemented the AJ’s decision. Complainant filed the instant appeal and submitted a brief in support of his appeal. Complainant argues that the AJ erred when he did not consider Complainant’s “addendum,” and he requests that the Commission reverse the Agency’s final order. The Agency did not respond to Complainant’s appeal. STANDARD OF REVIEW 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 the 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 Chap. 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, 2 We note that it appears that Complainant’s “Order” was his response to the AJ’s order for Complainant to respond to an intent to issue a summary judgment decision. However, the record did not include a copy of the order from the AJ, and we remind the Agency of its obligation to provide a complete record to the Commission. 20190051863 and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS Amendment A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint. See 29 C.F.R. § 1614.106(d). In this case, we find that Complainant appropriately sent his request to include his FY17 performance appraisal claim to the EEOC Atlanta District Office on November 22, 2017, after he filed his request for a hearing on November 16, 2017. In addition, we find that Complainant’s FY17 performance appraisal claim is directly related to claim 2, when he received a Performance Expectations memo regarding his poor performance. As such, we find that the instant complaint should be amended to include Complainant’s claim alleging discrimination when he received his FY17 performance appraisal. See 29 C.F.R. §1614.106(d), Decision without a Hearing We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §1614.109(g). Additionally, in the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that the AJ erred when he issued a decision without developing the record on the claim related to Complainant’s FY17 performance appraisal. Complainant raised this addendum twice: on November 22, 2017, in his request for discovery regarding the FY17 performance appraisal claim; and in his April 25, 2019 “Order” to the AJ in which he stated that summary judgement was not appropriate because the FY17 performance appraisal claim needed to be further developed. The Commission has found that when an AJ errs in issuing summary judgment without obtaining evidence on an amended claim, the matter should be remanded back to further develop the record on the amended claim. See Hester S. v. U.S. Postal Serv., EEOC Appeal No. 0120152890 (Dec. 20, 2017); Kyser v. Dep't of the Air Force, EEOC Appeal No. 0120102432 (Nov. 5, 2010); Oliphant v. Dep't of Agriculture, EEOC Appeal No. 01A10637 (June 24, 2002). Furthermore, for purposes of judicial economy we find that it is more appropriate that the entire complaint be considered together after the development of the record. 20190051864 Accordingly, we shall vacate the Agency’s final order adopting the AJ’s decision without a hearing and remand the entire complaint for further development of Complainant’s FY17 performance appraisal claim. CONCLUSION We VACATE the Agency’s final order and REMAND the complaint to the Agency for further processing, in accordance with our ORDER herein. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 15 days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall further develop the record on Complainant’s FY17 performance appraisal claim. The Administrative Judge will either hold a hearing and issue a decision, or issue a decision without a hearing, on all the claims in the complaint, in accordance with 29 C.F.R. § 1614.109. The Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 20190051865 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 20190051866 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 August 27, 2020 Date
