0120170976
02-09-2017
Abraham G.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abraham G.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120170976
Agency No. 201325029FAA05
DECISION
Complainant timely appealed to this Commission from the Agency's January 14, 2014 dismissal of his complaint of unlawful employment discrimination in violation of 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 worked as an Airway Transportation System Specialist at the Agency's Environmental System Support Center in Houston, Texas.
On or around June 17, 2013, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of disability (back injury) and age (60) by subjecting him to a hostile work environment including (but not limited to) the following incidents:
1. In September 2012, a coworker ("C1") physically and verbally harassed him by calling him profane names, using foul language when speaking to him, and pushing him into a wall;
2. On November 6, 2012, C1 disturbed him while he was taking a timed exam; and
3. On November 16, 2012, another coworker ("C2") who had been assigned to train him on equipment and software essential to performing his job duties, refused to train him.
According to Complainant, he had been subjected to ongoing harassment by his coworkers, particularly C1 and C2, over a period of months. For instance, Complainant alleged that C1, who shares a work space with him, regularly invaded his personal space, yelled at him and pushed him; and that C2 outright refused to train him, instead ordering him to do all of the of the "grunt work" when they were at worksites. Complainant further alleged that despite reporting the harassment to his supervisor ("S1"), no actions had been taken to stop it.
Prior to pursuing the instant complaint, Complainant filed two grievances on the same issues. The first grievance alleged that even though S1 instructed C2 to train Complainant on all engines and tanks, C2 told Complainant "I will not train you and you will not use the software program SAL." As a result, Complainant alleged that he did not receive training necessary to fulfill the performance standards outlined in his job description for over 10 weeks. Complainant's other grievance alleged that on September 6, 2012, C2 pushed him into a wall, on November 6, 2012, C2 distracted him by loudly stomping and shouting, causing him to lose about 15 minutes of focus as he attempted to complete a 2 hour timed exam, and on November 14, 2012, C2 slammed her fist on the fax machine hard enough to break it, and rammed and pushed him away from his desk. Both grievances were dismissed because Complainant failed to identify what provision of the Collective Bargaining Agreement ("CBA") he believed had been violated in his grievances.
The Agency dismissed Complainant's EEO complaint on July 1, 2013, reasoning that because he already raised the same claims within a negotiated grievance procedure, he was barred from raising them again in an EEO complaint, under 29 C.F.R. � 1614.107(a)(4). Complainant timely appealed to this Commission, and on November 25, 2013, we reversed the Agency's decision, finding that it failed to provide sufficient evidence to support a dismissal under � 1614.107(a)(4). See Complainant v. Dep't of Transportation, EEOC Appeal No. 0120132804 (Nov. 25, 2013). The Commission ordered the Agency to process Complainant's allegations "in accordance with 29 C.F.R. � 1614.108;" meaning the Agency was to conduct an impartial investigation of Complainant's claims.
On January 9, 2014, the Agency provided Complainant with an "Acknowledgement Letter" which, per EEOC guidance and 29 C.F.R. � 1614.108, identified the claims it would investigate and notified Complainant of his rights. Five days later, the Agency rescinded the letter and issued a final decision, which once again dismissed Complainant's claims pursuant to 29 C.F.R. � 1614.107(a)(4). Complainant brought the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.108(b) requires that the Agency develop an impartial and appropriate factual record. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("MD 110"), Ch. 6, � I (Aug. 5, 2015). 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 investigations allow for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." Id.
Rather than investigating Complainant's allegations pursuant to 29 C.F.R. � 1614.108(b), the Agency supplemented the record with evidence to support a dismissal under 29 C.F.R. � 1614.107(a)(4). Specifically, the Agency included a copy of the relevant provisions of the CBA and documentation that on November 29, 2012, Complainant filed two Step 1 grievances containing the same claims raised in the instant complaint. The Agency also provided copies of both dismissal letters, dated December 19, 2012. While this documentation is sufficient to prove failure to state a claim under 29 C.F.R. � 1614.107(a)(4), it is not relevant at this juncture, because we already remanded the complaint for investigation pursuant to 29 C.F.R. � 1614.108.
It is unclear how our order to process Complainant's claims in accordance with 29 C.F.R. � 1614.108 could have been interpreted as a "do over" for the Agency's previous failure to meet its evidentiary burden. We remind the Agency that "[t]he Commission's Administrative Judges and the Office of Federal Operations have the authority to issue sanctions against an agency for its failure to develop an impartial and appropriate factual record in appropriate circumstances." MD-110 at 6-27. See Royal v. Dep't. of Veterans Affairs, EEOC Appeal No. 0720070045 (Sept. 25, 2009) (finding that the agency's delay in completing the investigation within the 180-day regulatory period is no small noncompliance matter and warrants a sanction). We encourage the Agency to review our guidance, particularly chapters 6 and 7 of MD-110, and to contact its assigned compliance officer at the Office of Federal Operations if questions on how to properly comply with an Order arise in the future.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E1016)
1. Within fifteen (15) calendar days of the date this decision was issued, the Agency shall acknowledge to Complainant that it has received the remanded claims and notify him of his rights, including ADEA-specific appeal rights, and, given the age of this complaint, his right to request a hearing pursuant to 29 C.F.R. � 1614.108(h).
2. Within sixty (60) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time, the Agency shall issue to Complainant a copy of the investigative file and notify Complainant of the appropriate rights. The Report of Investigation must include an explanation and documentation demonstrating how the investigation was conducted in a manner consistent with 29 C.F.R. � 1614.108(b), and MD 110, available at https://www.eeoc.gov/federal/directives/upload/md-110.pdf.
3. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within thirty (30) calendar days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights, as well as a copy of the Agency's final decision, if applicable, must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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, Director
Office of Federal Operations
February 9, 2017
__________________
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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