Charles O. Ketcham, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A30141 (E.E.O.C. Oct. 27, 2003)

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.