EEOC Appeal No. 0120150462
07-21-2015
Complainant v. Court Serv. & Offender Supervision Agency
Complainant,
v.
Nancy M. Ware,
Director,
Court Services and Offender Supervision Agency,
Agency.
Appeal No. 0120150462
Agency No. F140015
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 14, 2014, dismissing 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Community Supervision Officer ("CSO") for the Agency's Branch IIA in the District of Columbia.
On June 26, 2014, Complainant filed a formal EEO complaint alleging that he was being subjected to discriminatory harassment by his second level supervisor, the Branch Chief (Caucasian male), on the bases of race (African-American), sex (male), color (Black), and age (49 years old).
A fair reading of the complaint and accompanying EEO counseling report shows that in support of his claim, Complainant alleged that, starting in February 2014, he learned that the Branch Chief was reviewing his caseload and contacting his assigned offenders and telling them not to tell Complainant about the contact. Complainant stated that the contact with his assigned offenders was creating a safety issue and undermining his credibility with his "high risk" offenders. Complainant further alleged that in April 2014, he learned from an offender that an investigator with the Agency's Office of Professional Responsibility ("OPR") was calling offenders and asking the same questions the Branch Chief had asked. Complainant also asserted that the Branch Chief was similarly questioning some of his coworkers. Complainant asserted that his first level supervisor denied knowing the reason for the investigation. Complainant also alleged that non-African American coworkers were given more favorable assignments and appointed to desirable committees such as the morale committee, while he was not.
The Agency dismissed the complaint for failure to state a claim, pursuant to 29 CFR� 1614.107(a)(1).1 Specifically, the Agency found that Complainant failed to show he was an "aggrieved employee" and that his claims amounted to a "collateral attack" on an ongoing OPR investigation. The Agency also stated that it was "unable to effectively investigate [Complainant's] allegations without collaterally attacking" the OPR investigation.
The instant appeal followed.
ANALYSIS AND FINDINGS
Harassment/Hostile Work Environment
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. In this case, Complainant has alleged that he was being subjected to unwarranted scrutiny and criticism by the Branch Chief that included questioning offenders he was supervising and undermining his authority with those offenders. Among other things, Complainant asserted the Branch Chief's actions were creating a safety issue for him with the "high risk" offenders. In addition, Complainant asserted he was given less favorable assignments than his younger non-African American coworkers and was not appointment to desirable committees. These allegations of ongoing harassment, viewed in the light most favorable to Complainant, are sufficient to state a viable claim of discriminatory harassment/hostile work environment that requires investigation and further processing.
Collateral Attack
The Agency also dismissed the complaint as an impermissible collateral attack on a pending and opened OPR investigation. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's adjudicatory proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint).
In this case, however, a fair reading of the formal complaint, and related EEO counseling materials reveals that Complainant is not challenging an OPR adjudicatory determination. Rather, he is claiming that his direct management, especially the Branch Chief, has engaged in a campaign of discriminatory harassment against him, including questioning his offenders and coworkers, and taking action which may have resulted in the OPR inquiry. These allegations do not constitute an impermissible collateral attack.2
The Agency's decision dismissing the complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) 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 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 (M0610)
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 tends 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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
July 21, 2015
__________________
Date
1 On May 15, 2015, Complainant, through counsel, contacted the Commission alleging that the Agency issued him a Notice of Proposed Removal on April 16, 2015, as retaliation for engaging in the protected activity that resulted in the instant appeal. We decline to discuss this new claim because it is not before us on appeal, and instead note that this claim should be brought before an Agency EEO counselor.
2 We note that Agency, in its dismissal decision, expressed concern that the OPR investigator would not respond to questions posed during the EEO investigation. It appears from the record that the OPR investigator is a federal employee. If that is the case, the OPR investigator must produce such documentary and testimonial evidence as the EEO investigator deems necessary to develop an appropriate factual record upon which findings can be made relevant to Complainant's discrimination claims. 29 C.F.R. � 1614.108(c)(1).
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120150462
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120150462