Valentin G.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMay 31, 20180120162246 (E.E.O.C. May. 31, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentin G.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120162246 Hearing Nos. 540-2011-00162X, 540-2012-00055X Agency Nos. ARDESERET10APR01908, ARDESERET11MAT02550 DECISION On June 25, 2013, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a) 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission finds that the instant appeal is premature and AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Security Guard, GS- 0085-05, at the Agency’s Pueblo Chemical Depot in Pueblo, Colorado. On July 1, 2010, Complainant filed an EEO complaint (Agency No. ARDESERET10APR01908) wherein he claimed that the Agency discriminated against him on the bases of his race (African- American, Native-American) and age (53) when on May 23, 2010, he was suspended for four days, 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. 0120162246 2 and his performance evaluations were modified without his knowledge. Complainant also claimed that he was treated differently and disciplined more harshly than others in similar situations. On July 6, 2011, Complainant filed an EEO complaint (Agency No. ARDESERET11MAT02550) wherein he claimed that the Agency discriminated against him in reprisal for his prior protected EEO activity under Title VII and the ADEA when he was not selected for a Lead Security Guard position. An additional accepted claim was whether Complainant was discriminated against in reprisal when, as a result of an email, he was temporarily disqualified from chemical personnel reliability duties. The two complaints were consolidated for investigation. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on January 28-30, 2013, and issued a decision on May 8, 2013. The AJ found that Complainant was discriminated against on the bases of his race and age when he was suspended for four days. The AJ found that Complainant did not offer probative evidence to prove by a preponderance of the evidence that someone improperly added his signature to his performance evaluation. With regard to the claim concerning Complainant being treated differently and disciplined more harshly than others in similar situations, the AJ stated that Complainant offered no probative evidence of other timely acts in support of the claim. The AJ found that Complainant failed to establish that reprisal occurred when he was not selected for a Lead Security Guard position. The AJ further found that the Agency engaged in reprisal when it placed him on a temporary medical restriction. Additionally, the AJ found that the reprisal that occurred constituted a per se violation. The AJ ordered the Agency to rescind the Notice of Four-Day Suspension and delete from all official and unofficial files, both electronically and non-electronically, all documents pertaining to the four-day suspension. The AJ stated that all references to the suspension shall be removed, including the Notice of Proposed Suspension, the Notice of Suspension, all of the supporting material, and any reference to the suspension contained in all subsequent documents pertaining to Complainant. The AJ ordered that Complainant be awarded back pay and applicable benefits for the period of the four-day suspension. The AJ also awarded Complainant $35,000 in non- pecuniary damages, and pecuniary compensatory damages of $129.63. The AJ stated that the Agency shall consider giving five named individuals written counseling or discipline with regard to the conduct for which it was found liable. The AJ ordered training for one official, focusing on the prohibition of race and age discrimination in the discipline process. The AJ also ordered training for five individuals, focusing on the prohibition against reprisal for engaging in protected activity. The AJ further ordered the Agency to post a Notice to employees concerning the discrimination that occurred. Additionally, the AJ ordered the Agency to issue a Memorandum informing all civilian managers and supervisors at the Pueblo Chemical Depot that they can be subject to discipline, including but not limited to suspension, demotion, or termination, for discriminating against an employee based on race or age by imposing discipline, or by 0120162246 3 retaliating against an employee due to the employee’s involvement in the EEO complaint and hearing process. The AJ ordered that a Memorandum also be issued to seven named individuals informing them that all civilian managers and supervisors at the Pueblo Chemical Depot can be subject to discipline, including but not limited to suspension, demotion, or termination, for retaliating against an employee due to the employee’s involvement in the EEO complaint and hearing process. Complainant filed the instant appeal with the Commission on June 25, 2013. Complainant contends that the Agency failed to issue a final action within forty days of the AJ’s decision and therefore it is obligated to follow the AJ’s decision. Complainant states that he received the AJ’s decision on May 13, 2013, and the Agency received the AJ’s decision on May 9, 2013. In response, the Agency asserts that it timely issued a final action on June 24, 2013. The Agency states that it received notice of the AJ’s decision on May 13, 2013. The Agency notes that the 40th calendar day after it received the AJ’s decision was on June 22, 2013, a Saturday. The Agency states that it issued its final action on the next business day, Monday, June 24, 2013, which became the last day of the forty-day time period, and is working toward compliance. The Agency requests that the instant appeal be dismissed as premature. The final action issued by the Agency implemented the AJ’s decision in full. Upon review of the record, we find that Complainant prematurely filed the instant appeal. The Agency issued its final action on June 24, 2013, within the forty-day time period. Complainant prematurely filed the instant appeal on the following day, but before he received the Agency’s final action. He did not appeal any other aspects of the AJ’s decision, and was petitioning the Commission to enforce the AJ’s decision in his favor. The Agency implemented the AJ’s decision in its final order. To the extent it has not already done so, the Agency shall take the actions ordered by the AJ, as modified and delineated again in the Order below. ORDER Within ninety (90) days of the date this decision is issued, to the extent it has not already done so, the Agency is ordered to take the following remedial actions, or provide proof that it has completed the ordered actions: 1. Rescind the Notice of Four-Day Suspension. All documents pertaining to the discriminatory four-day suspension shall be deleted from all official and unofficial files at the Agency, both electronically and non-electronically, both in Pueblo, Colorado and at any other location where they are retained. These documents include, but are not limited to, the Notice of Proposed Suspension, the Notice of Suspension, and all of the supporting material. All other references to the suspension shall be removed, including any reference to the suspension contained in all subsequent documents pertaining to Complainant. 2. As a remedy for the Agency’s four-day suspension of Complainant without pay, the Agency shall compensate Complainant for all back pay and applicable benefits he was 0120162246 4 denied during these periods. Gross back pay includes all forms of compensation such as wages, bonuses, vacation pay, and all other elements of reimbursement and fringe benefits such as contributions to thrift savings, as well as pensions and health insurance. 3. Prejudgment interest shall also be paid on lost back pay and benefits, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury under 26 U.S.C. § 6621(a), and 5 C.F.R. § 550.806(d) and (e). Interest shall be paid from the dates Complainant was eligible or entitled to such additional compensation to the date that the monetary amount is paid by the Agency. Prejudgment interest also shall be paid by the Agency. 4. The Agency shall provide Complainant with a detailed statement of the Agency’s calculations regarding all of the components of Complainant’s back pay, other applicable employment benefits and interest. The Agency will provide Complainant all letters, e-mails, and other correspondence sent to the Social Security Administration regarding Complainant’s updated earnings. 5. The Agency shall pay $35,000 to Complainant as non-pecuniary compensatory damages. 6. The Agency shall reimburse Complainant for the cost of mailings, set forth in his original and revised submission of expenses, in the total amount of $129.63. 7. The Agency will not discipline an employee due to his/her race or age. 8. The Agency shall consider giving the following individuals written counseling or discipline with regard to the conduct for which the Agency had been found liable in this case: Complainant’s first level supervisor during the relevant time period; the Agency counsel named in the final action; the Head of the Surety Office of the Chemical Materials Activity Program during the relevant time period; the Supervisory Security Guard during the relevant time period; and the Surety Officer at the Pueblo Chemical Depot during the relevant time period. The Agency shall make this determination within 60 days and, if it decides to issue a counseling or discipline, the Agency shall retain documentation of any counseling or discipline issued. 9. The Agency shall provide training for Complainant’s first level supervisor during the relevant time period. The training shall be provided on Title VII and the ADEA, focusing on the prohibition of race and age discrimination in the discipline process. The training shall be completed within 60 days. The training shall be live and shall be a minimum of two hours, including time for questions and answers. The Agency shall retain documents regarding the following: name and resume of the trainer, copy of written training materials and signed verification of attendance. 10. The Agency also shall provide training for the Agency counsel named in the final action; the Chief of the Chemical Materials Activity’s Legal Office during the relevant period; the Head of the Surety Office of the Chemical Materials Activity during the 0120162246 5 relevant time period; the Supervisory Security Guard during the relevant time period; and the Surety Officer at the Pueblo Chemical Depot during the relevant time period. The training shall be provided on Title VII and the ADEA, focusing on the prohibition against reprisal for engaging in protected activity. The training shall be completed within 60 days. The training shall be live and shall be a minimum of one and one-half hours, including time for questions and answers. The Agency shall retain documents regarding the following: name and resume of the trainer, copy of written training materials, and signed verification of attendance. 11. The Agency shall post the attached Notice in prominent places at the Pueblo Chemical Depot including at all places where any type of Notices are posted for Agency employees at this address. The Notice also shall be prominently posted for employees electronically. The Notice shall be posted within 30 days and shall remain posted for 120 days. The Notice shall be posted in a size at least as large as the Notice attached to the AJ’s decision. The Notice shall be signed by the Commander of the Pueblo Chemical Depot. The Agency shall take reasonable steps to ensure that the posted Notice is not altered, defaced, or covered over by any other material. The original, signed Notice shall be retained by the Agency for one year. The Agency shall also prepare and retain for the same period, a declaration that the Notice has been at all locations and a second declaration that the Notice remained posted at all locations for the required 120 days. 12. The Agency shall issue a Memorandum informing all civilian managers and supervisors at the Pueblo Chemical Depot that they can be subject to discipline, including but not limited to suspension, demotion, or termination, for discriminating against an employee based on race or age by imposing discipline, or for retaliating against an employee due to the employee’s involvement in the EEO complaint and hearing process. The Memorandum shall be signed by the highest-level official in the chain of command over the security guards at the Pueblo Chemical Depot. The Memorandum shall be issued within 45 days. 13. The Agency shall issue a Memorandum to the following individuals: the Chief of Staff of the Chemical Materials Activity during the relevant time period; the Chief of Staff of the Pueblo Chemical Depot during the relevant time period; the Agency counsel named in the final action; the Head of the Surety Office of the Chemical Materials Activity during the relevant time period; the Chief of the Chemical Materials Activity’s Legal Office during the relevant time period; the Supervisory Security Guard during the relevant time period; and the Surety Officer at the Pueblo Chemical Depot during the relevant time period. The Memorandum shall inform them that all managers and supervisors at the Chemical Materials Activity can be subject to discipline, including but not limited to suspension, demotion, or termination for retaliating against an employee due to the employee’s involvement in the EEO complaint and hearing process. The Memorandum shall be signed by the highest-level official at the Chemical Materials Activity. The Memorandum shall be issued within 45 days. The original, signed Memorandum shall be retained by the Agency for one year. 0120162246 6 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 evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Pueblo, Colorado facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission's Decision,†within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 0120162246 7 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. 0120162246 8 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 May 31, 2018 Date Copy with citationCopy as parenthetical citation