01A30141
10-27-2003
Charles O. Ketcham, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Charles O. Ketcham v. Department of Labor
01A30141
October 27, 2003
.
Charles O. Ketcham,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A30141
Agency No. 01-07-126
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission vacates and remands the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as an Office of Workers' Compensation Programs (OWCP) Regional Director
at the agency's Kansas City, Missouri facility. Complainant sought EEO
counseling and, subsequently, filed a formal complaint on September 23,
2001, alleging that he was discriminated against on the bases of his sex
and age (D.O.B. 7/11/33) when he received a memorandum dated May 16, 2001,
directing his reassignment from OWCP Regional Director in Kanasas City,
Missouri, to the Division of Energy Employees' Compensation in Cleveland,
Ohio, as District Director, effective June 17, 2001.<1>
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and informed of his right to request a hearing
before an EEOC Administrative Judge (AJ) or alternatively, to receive
a final decision by the agency. Complainant requested that the agency
issue a final decision, noting that the record was incomplete because
several witnesses declined to testify during the investigation out of
fear of retaliation. (Report of Investigation [ROI] at tab F5).
In its FAD, the agency concluded that complainant failed to establish,
by a preponderance of the evidence, that its articulated legitimate,
nondiscriminatory reasons for its actions were pretext for discrimination.
Ultimately, the FAD concluded that complainant failed to demonstrate
that he was discriminated against. Complainant raises no contentions
on appeal, and the agency requests that we affirm its final decision.
After a thorough review of the record, we find that the evidence is
insufficient to allow a determination on the merits of complainant's
claims of discrimination on either of the alleged bases. The Commission's
regulations and the Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (EEO MD-110), require agencies to develop a
complete and impartial factual record. See 29 C.F.R. � 1614.108(b);
EEO MD-110, Chapter 6, page 6-1 (November 9, 1999). In the instant
case, relevant evidence, such as the testimony of witnesses, as well as
other documentary evidence which would buttress or rebut the agency's
stated reasons, were not included in the record. The investigative
report states that three witnesses did not wish to testify for fear of
retaliation,<2> one witness provided testimony over the telephone but
did not return the signed affidavit, and the investigator was unable to
contact three employees identified by complainant as material witnesses.
(ROI at 5). The Commission's regulations require any employee of a
federal agency to produce documentary and testimonial evidence as the
investigator deems necessary. 29 C.F.R. � 1614.108(c)(1).
Additionally, we note that where the agency's employees fail without
good cause to respond fully and in timely fashion to requests for
documents, records, affidavits or the attendance of witnesses, an AJ or
the Commission on appeal may issue sanctions, including drawing an adverse
inference that the requested testimony of the witness would have reflected
unfavorably on the party refusing to provide the requested information,
or issue a decision fully or partially in favor of the complainant.
29 C.F.R. �� 1614.108(c)(3)(i)-(v), 1614.109(e)(3)(i)-(v). Here,
neither the ROI nor the FAD provide sufficient rationale as to why the
witnesses did not provide testimony or were not successfully contacted.
Fear of retaliation is not sufficient to excuse federal agency employees
from participating as witnesses in an EEO investigation. It is a
violation of federal law for an agency to restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, federal equal employment opportunity law.
We therefore vacate the agency's finding of no discrimination, and
remand this matter for a supplemental investigation in accordance with
the following Order, and the applicable EEOC Regulations.
ORDER
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
The agency shall ensure that the investigator obtains testimony from
the witnesses who previously failed to respond, as well as contact and
interview the three material witnesses identified by complainant who
were offered reassignment and rejected it without adverse action taken.
The agency shall ensure that the investigator obtain any other affidavits,
records or statistics not specifically requested in this Order, and not
inconsistent with this opinion, which may be relevant in determining
the veracity of complainant's complaint allegations.
The agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. Thereafter, the agency shall provide the complainant,
within thirty (30) calendar days from the date the agency completes the
supplemental investigation, an opportunity to request a hearing before
an EEOC Administrative Judge. If complainant does not request a hearing
within thirty days of his receipt of the supplemental investigative
report, the agency shall take final action consistent with 29 C.F.R. �
1614.110(b).
The agency shall submit a compliance report as referenced immediately
below. This report must include a copy of the supplemental investigative
report and either complainant's request for a hearing or the agency's
final action.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2003
__________________
Date
1 Complainant's original complaint of age
discrimination was later amended by the agency after a request from
complainant to include sex as a basis of discrimination.
2 The witnesses include a FECA Claims Manager in Kansas City, and an
OWCP Senior Claims Examiner in Kansas City. The identity of the third
witness is unclear from the record.