0120132831
09-10-2015
Complainant v. Jeh Johnson, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
Complainant
v.
Jeh Johnson,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120132831
Hearing No. 430-2012-00260X
Agency No. HS-ICE-00991-2011
DECISION
Complainant timely filed an appeal from the Agency's final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order.
ISSUES PRESENTED
The issues presented are: 1) whether there are genuine issues of material fact that require a hearing before an EEOC Administrative Judge (AJ); and 2) whether the AJ properly found that Complainant did not establish that he was subjected to discrimination and hostile work environment harassment based on his race and prior protected EEO activity as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant (African-American) worked as a Criminal Investigator, Special Agent (SA), GS-13, at the Agency's Office of Investigations in Norfolk, Virginia. Report of Investigation (ROI), at 35. Although Complainant indicated that he worked in Norfolk, Virginia, for some period of time, he was assigned to an office located in Newport News, Virginia, along with another African-American Special Agent (SA1). Id. at 98.
Before being assigned to the Norfolk area, Complainant started his career by attending the Agency's academy in Denver, Colorado. Complainant thereafter was assigned to work for the Agency in Wilmington, North Carolina. While working in Wilmington, Complainant met his soon-to-be wife (Caucasian), an Agency employee who worked at the Agency's Customs and Border Protection Office. Id. at 91. Complainant and his wife were married in June 2006.
Like Complainant, his wife also began working for ICE, and in 2009 she accepted assignment to the Agency's Richmond, Virginia, office. Id. at 39-40. In November 2009, Complainant was also transferred to Virginia, but instead to the Agency's Office of Investigations in Norfolk. Id. According to Complainant, other married couples were allowed to work within the same office location, while he and his wife were not afforded the same convenience. Id. Complainant averred, however, that neither he nor his wife specifically asked management that they be allowed to work in the same office location. Complainant did state that he was told by an acting supervisor (Caucasian) that a married couple could not work in the same office. Id. Notwithstanding, two married couples (both Caucasian) were assigned to the Agency's Norfolk office. Id. at 156. While assigned to Norfolk, Complainant worked under his first-level supervisor (S1) from November 2009 through January 2011 and from May 2011 to present. Complainant worked under his second-level supervisor (S2) beginning November 2010.
In March 2009, before Complainant's arrival to Norfolk, a number of agents attended a concert as part of an undercover operation. In order to blend into the crowd, S2 reportedly provided agents with beers as part of their "cover." Id. at 214. According to Complainant, an agent said to him (Complainant) that as part of the operation, S2 provided all the Caucasian agents with regular beers, but an African-American Special Agent (SA2) was provided with a 40-ounce malt liquor. Id. at 42. SA2 confirmed that he was given the malt liquor. Id. at 214. Complainant averred that he was also told that an employee had been referring to SA2 as the "big Black shiny guy." Complainant further averred that, shortly after he arrived in Norfolk, he was told that a coworker (Caucasian) commented that she "didn't know [Complainant's wife] was like that." Complainant believed that this comment negatively referenced his interracial marriage. Id. at 244.
In January 2010, Complainant had a discussion with S1 regarding an international document fraud organization that might be operating in the Norfolk area. Id. at 107. Complainant informed S1 that he uncovered the evidence of this fraudulent organization while he worked in the Wilmington office. Id. S1, however, told Complainant that he (S1) had not seen any evidence from other document cases to support Complainant's theory about this organization. Id. As a result, S1 did not propose to initiate an investigation at that juncture, or to take any other actions to confirm Complainant's suspicions about the fraud organization. Id. Complainant averred that S1 only acted when a Caucasian special agent (SA3) intervened; and as a result, six months later management conducted an investigation into the document fraud organization through a wiretap. Id. at 94. Complainant averred that he had more experience in general investigations and in document fraud than SA3 and believed that SA3 was given preferential treatment. Id.
On or about March 16, 2011, a special agent told Complainant that while he and another special agent were performing an operation, they found a cell phone in an Agency vehicle. Id. at 96. The special agent apparently said that in trying to determine the owner of the cell phone, a photograph of a "Black baby in a Kentucky Fried Chicken bucket" was found on the phone. Id. The special agents who found the photograph on the cell phone did not report it to management. However, after Complainant was told of the photograph, he (Complainant) and SA1 reported it to management. Id. Complainant averred that he asked management to take the situation seriously because it was a major concern to the minority personnel in the office, but nothing was done. Id. It was later determined that the owner of the phone was SA3, a coworker of Complainant's. S1 averred that after learning of the photograph he spoke with the owner of the phone, SA3, and he also consulted the Employee and Labor Relations Office for guidance. Id. at 110.
Sometime later, Complainant and his wife started working on an investigation together. Complainant averred the investigation began when his wife was put in contact with an informant in Richmond. Id. at 97. Complainant indicated that his wife contacted him because the corrupt acts were occurring in Norfolk, so it made sense to have one agent speaking with the informant in Richmond and one in Norfolk to assist with surveillance. Complainant averred that after he and his wife had worked together for at least a week, his acting supervisor said that married couples could not be control and secondary agents on a confidential file nor could married agents be designated as the primary and secondary contact agents for an informant source. Id. As a result, Complainant's wife was pulled off the investigation.
In March 2011, Complainant was notified by S2 that the United States Attorney's Office (USAO) needed his and SA1's Newport News office space. Id. at 98. As a result, management instructed Complainant and SA1 to move from the Newport News office to the Norfolk Federal Building. However, according to Complainant, he spoke to a number of employees in the USAO's office who said that they had not requested the office space, as they had plenty of other vacant offices for use if they needed space. Id. Complainant averred that during the same time period, another agent (Caucasian) was moved from the Henneman office to the Norfolk Federal Building also. Id. Complainant said this agent was provided with a moving company. Id. Complainant indicated that he requested the same moving assistance, but was denied. Id. As a result, Complainant and SA1, the only two at Newport News, had to move their offices themselves. However, S1 averred that the Henneman office move had been planned for approximately two years and included funding to support the relocation, unlike the Newport News move, which was more immediate. Id. at 112. S1 averred that he instructed Complainant to coordinate with the acting supervisor to use any resources necessary for the move. Id. S1 also sent Complainant an e-mail, writing that Complainant would not be solely responsible for moving furniture, and that the move would be a group effort with personnel and vehicles assigned. Id.
On May 20, 2011, while Complainant was out on sick leave, management was concerned as to whether Complainant provided an informant with $2,000 in "buy money." Complainant indicated that he in fact paid the informant the money, but management failed to ask him directly if he did so. Complainant felt that management gave him the impression that he was being investigated regarding the money. According to S2, Complainant did not complete the required paperwork after the informant was provided with the money. Id. at 124-25. S2 indicated that management took efforts to resolve the matter and there was no investigation, or referral for investigation, because there was no assumption that Complainant engaged in wrongdoing. Id.
On May 31, 2011, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment on the bases of race (African-American) and in reprisal for prior protected EEO activity when:
1. Since November 2009, he and his spouse have been assigned to different Virginia offices.
2. Subsequent to November 2009, he was made aware that S2 gave an African-American employee malt liquor.
3. Subsequent to November 2009, he heard about an employee referring to an African-American Agent as "the big Black shiny guy."
4. Subsequent to November 2009, a coworker commented she did not expect his spouse to be married to an African-American man.
5. In January 2010 his theories about an "international fraudulent document organization" were dismissed and not acted upon. Six months later, management pursued investigation of just such an organization.
6. Between March 16, and 18, 2011, management did not "give appropriate attention" to his case involving a corrupt agency official. Management also exhibited no faith in his investigative and decision-making abilities.
7. On or about March 16, 2011, he learned of a racially inappropriate photograph on SA3's personal cell phone.
8. On March 31, 2011, he was told that he and his wife could not be control and second agents on a confidential file nor could married agents be designated as the primary and secondary contact agents for a source.
9. On March 31, 2011, he was reassigned from Newport News, Virginia, to Norfolk, Virginia.
10. On May 20, 2011, he became aware that he was not advised of an investigation into the alleged theft of informant-related money.
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. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 17, 2013, motion for a decision without a hearing. The AJ issued a decision without a hearing on June 6, 2013, in the Agency's favor. The Agency subsequently issued a final order implementing the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Specifically, with regard to disparate treatment, the AJ found that Complainant failed to establish that the Agency's legitimate, nondiscriminatory reasons for its actions were pretext for discrimination. The AJ noted that Complainant never requested to be assigned with his wife and that the malt liquor incident was not reported to management near the time it occurred. The AJ also noted that the racially inappropriate photograph matter was investigated when the matter was reported. The AJ indicated that, while the photograph was particularly disturbing, it was housed on a personal cell phone and unknown to the Agency. The AJ noted that Complainant admitted that he never saw the photograph. The AJ noted, regarding claim 3, that although the reference to Complainant's coworker as the "big Black shiny guy" was offensive, there was no evidence that SA2 was offended by the description or even knew of it. The AJ further noted that Complainant was not present when the comment was made. The AJ also indicated, with respect to claim 4, that although the comment was disturbing, neither Complainant nor his wife was present when it was made, and therefore they did not hear the comment first-hand. The AJ additionally noted that this was an isolated statement, which did not support racial animus. The AJ further noted that the African-American Special Agent, SA2, who was given the bottle of malt liquor, was not offended. The AJ also indicated that, although Complainant was required to move from the Agency's Newport office with little support, Complainant did not refute the Agency's reason that there were no approved funds for the move.
The AJ additionally found that Complainant failed to establish hostile work environment/harassment as alleged. In finding so, the AJ indicated that Complainant was not subjected to an investigation, but rather a briefing to ascertain and discuss the proper protocol for documenting "buy money." The AJ noted that Complainant only alleged one racially-insensitive matter, one conversation regarding an event before he even worked in the Norfolk office, one conversation referring to an African-American agent, and one comment about his wife. The AJ therefore found no evidence that Complainant was subjected to discrimination or harassment as alleged.
CONTENTIONS ON APPEAL
Complainant's Brief on Appeal
On appeal, Complainant, through his attorney, argues that S2, the head of the office, engaged in serious actionable discriminatory conduct. Complainant maintains that S2 stereotyped SA2, giving him a can of malt liquor while giving his fellow Caucasian agents a beer. Complainant asserts that SA2 stated that S2, in giving him the malt liquor, stated "here you people drink this." Complainant contends that we have previously held that the term "you people" is a discriminatory reference to African-Americans. Complainant maintains that contrary to the AJ's finding, special agents were offended when SA2 was referred to as the "big Black shiny guy." Complainant says the use of the term "the Black guy" along with the assignment of additional duties can provide evidentiary support for a viable claim of race-based harassment. Complainant also maintains that the Intel Analyst provided a statement that S2 has referred to African-American Agents as "monkeys" and/or "n----rs," highly offensive remarks, clearly demonstrating racial animus. Complainant moreover maintains that the photo of the baby in the KFC bucket was highly disturbing, and that all the above incidents clearly show a hostile work environment based on his race.
Complainant also argues that the AJ failed to look at the "discriminatory picture" as a whole. Complainant contends that the Commission has held that when a supervisor has harassed or discriminated against other members of the same protected group, that discrimination can create a hostile work environment. Complainant further argues that the Commission has also held that incidents, which were not directly witnessed by a particular complainant, but are later shared with a complainant, are still actionable as they may create a hostile work environment. Complainant states that the Commission has specifically noted that "the fact that a complainant learns second-hand of a racially derogatory comment by a co-worker can impact the work environment." Complainant additionally asserts that when he brought "leads" or cases to management, they would be discounted, but when Caucasian agents did the same, they would receive management's attention and support. Complainant states that management constantly did not provide him with support, including delays when it came to obtaining buy money that his Caucasian counterparts did not experience. Complainant states that not obtaining buy money in a timely manner not only jeopardizes undercover operations, as criminals get nervous, but also puts the special agent working undercover at risk.
Agency's Response
The Agency states that its policy dictates that married couples are not permitted to work within the same investigative work group. The Agency asserts that Complainant did not raise concerns to Norfolk management over being placed in a different office than his wife. The Agency further asserts that Complainant and his wife did not initially request to be transferred to the Norfolk office when they learned that two other married couples had been working there. The Agency notes that Complainant's wife also did not request to be transferred from Richmond. The Agency asserts that although S2 recalled working at the concert, he did not recall there being any malt liquor present. The Agency further asserts that Complainant was not present at the concert and was not even assigned to the Norfolk office when the incident allegedly occurred. The Agency notes that Complainant never reported the matter to management or the Agency's Joint-Intake Center (JIC). The Agency argues that, although Complainant was told that an employee referred to SA2 as "the big Black shiny guy," Complainant admitted that he did not witness the remark being made and did not report it to management or the JIC for further investigation. With respect to the comment from an employee about Complainant's marriage, the Agency indicates that Complainant was not present when the comment was made and never reported it to management or the JIC. As for claim 5, the Agency notes that Complainant admitted that he believed the Caucasian Special Agent's investigation was pursued instead of his because SA3 was close friends with S1.
With respect to claim 7, the Agency notes that S1 conducted an inquiry into the matter and verbally counseled SA3 over the photograph. The Agency additionally notes that no married special agents have been listed as primary and secondary agents on confidential informant files in order to avoid the appearance of a conflict of interest. The Agency argues that management repeatedly assured Complainant that special agents would help him and SA1 move their belongings using a duty van. The Agency states that the former acting supervisor traveled to the Newport News office and brought moving boxes, tape, and labels for Complainant and SA1. With respect to claim 10, the Agency notes that management learned that Complainant instructed his wife and the confidential informant to sign a piece of notebook paper regarding the buy money; as such, Complainant did not properly document the May 4, 2011, payment in accordance with Agency policy. The Agency notes that, notwithstanding, there was no investigation or referral for investigation, because at no time was there an assumption by management of any wrongdoing by Complainant.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review ..."); see also EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, � VI.B. (Nov. 9, 1999) (both an administrative judge's decision to issue a decision without a hearing and the decision on the merits of the complaint will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI. A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
AJ's issuance of a Decision without a Hearing
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly consider issuing a decision without holding a hearing only upon a determination that the record has been adequately developed for summary disposition. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one parry without holding a hearing unless he or she ensures that the parry opposing the ruling is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment "where the [p]arty opposing summary judgment] has not had the opportunity to discover information that is essential to his opposition." Anderson, 477 U.S. at 250. In the bearing context, this means that the administrative judge must enable the parties to engage in the amount of discovery necessary to properly respond to any motion for a decision without a hearing. Cf. 29 C.F.R. � 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if necessary, after receiving an opposition to a motion for a decision without a hearing).
The courts have been clear that summary judgment is not to be used as a "trial by affidavit." Redmand v. Warrener, 516 F.2d 766, 768 (1st Cir. 1975). The Commission has noted that when a party submits an affidavit and credibility is at issue, "there is a need for strident cross-examination and summary judgment on such evidence is improper." Pedersen v. Dep't of Justice, EEOC Request No. 05940339 (Feb. 24, 1995). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives Complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998). See also Peavley v. U.S. Postal Serv., EEOC Request No. 059:50628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 2.5, 1995).
To establish a prima facie case of hostile environment harassment, complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Sec. Admin., EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Upon review, we find that the AJ's decision to find for the Agency without a hearing was an error, as we cannot say that as a matter of law that the incidents of harassment do not amount to a hostile work environment. Here, on appeal, Complainant alleges that a management official (the Intel Analyst) submitted a statement that S2 has referred to African-American Agents as "n----rs" and/or "monkeys." We note the Commission has held that such highly offensive slurs or comments about a federal employee's race may support a finding of discrimination under Title VII. The Commission has previously noted that the use of the racial epithet "n----r" is a "highly charged epithet" which "dredge[s] up the entire history of racial discrimination in this country." See EEOC Compliance Manual, Section 15, "Race and Color Discrimination," No. 915.003, 15-38 (April 19, 2006); Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (June 25, 1996). Moreover, the fact that the remark may not have been specifically directed toward complainant is not dispositive. See Barber, Eley, Powell, and Johnson v. Dep't of the Navy, EEOC Request Nos. 05A50657, 05A50771, 05A50972, 05A50973; see also Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (racial harassment not directed specifically at plaintiff, but part of plaintiff's work environment, could be actionable).
Further, Complainant indicates that S2 stereotyped SA2, an African-American agent, giving him malt liquor instead of regular beer during the concert undercover operation, saying, "Here, you people drink this." In addition, the record reflects that SA3, a coworker of Complainant's, was found to have a racially offensive photograph on his phone. Complainant and another African-American agent brought the photograph to the attention of management, but no significant discipline or action was taken against SA3, the owner of the phone. Also, according to Complainant, he heard that an employee had made a negative comment of about his interracial marriage, stating that she did not know his wife "was like that." Also, the record reflects that another African-American agent was referred to as "the big Black shiny guy." We find there is a dispute here as to whether such epithets and remarks permeated the workplace, creating a severe and abusive atmosphere as a whole. We note that, in considering a hostile work environment claim, we look to the totality of the circumstances. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
We note, as the AJ pointed out, that Complainant heard about these derogatory matters second-hand from other employees. However, merely because Complainant was not present when the derogatory comments were made, does "not render [those] comment[s] irrelevant to [his] hostile work environment claim." Schwapp v. Town of Avon, 18 F.3d 106, 111 (2d. Cir. 1999) (court considered eight additional racially-charged incidents that did not occur in plaintiff's presence in reversing district court's granting of summary judgment to defendants in a hostile work environment claim); Jackson v. Quanex Corp., 191 F.3d 647, 659-661 (6th Cir. 1999); Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 675-676 (7th Cir. 1993); Carter v. Chrysler Corp., 173 F.3d 693, 701 fn.7 (8th Cir. 1999). Therefore, second-hand evidence of discriminatory comments is relevant to whether a hostile work environment existed, because these comments can also impact the work environment. Schwapp, 18 F.3d at 111. As such, we find that there is a dispute as to whether these comments rise to the level of a hostile work environment.
Further, the record reflects that a hearing is necessary to resolve issues of credibility, given the fact that S2 specifically denies providing SA2 with the malt liquor. The record also does not contain the Intel Analyst's statement that S2 had referred to African-American agents in racially offensive terms, as Complainant alleges on appeal. Further, there is no dispute that two married Caucasian couples were allowed to work in the Norfolk office, in contravention of the Agency's asserted policy. While Complainant may have not specifically asked management for assignment to the same office, there is no dispute that management did not offer such to Complainant or his wife, either. Complainant additionally asserts that when he brought "leads" or cases to management, they would be discounted, but when Caucasian agents did the same, they would receive management's attention and support. Complainant's assertion here may be supported by the above-reported racial and derogatory incidents occurring in the office. As complainant is the non-moving party and all justifiable inferences must be drawn in the non-moving party's favor, if the comments and events are accepted as true, a reasonable fact-finder could find in his favor.
We note that the hearing process is intended to be an extension of the investigative process, designed to ensure that the parties have "a fair and reasonable opportunity to explain and supplement the record and, in appropriate instances, to examine and cross-examine witnesses." See EEO MD-110, 7-1; see also 29 C.F.R. � 1614.109(e). "Truncation of this process, while material facts are still in dispute and the credibility of witnesses is still ripe for challenge, improperly deprives complainant of a full and fair investigation of her claims." Bang v. U.S. Postal Serv., EEOC Appeal No. 01961575 (Mar. 26, 1998); see Peavley v. U.S. Postal Serv., EEOC Request No. 05950628 (Oct. 31, 1996); Chronister v. U.S. Postal Serv., EEOC Request No. 05940578 (Apr. 25, 1995). In summary, there are numerous unresolved matters of material fact which require determination by the AJ. Therefore, judgment as a matter of law for the Agency should not have been granted.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that this case presented genuine issues of material fact, such that summary judgment was not appropriate. Accordingly, we VACATE the Agency's final order.
ORDER
The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Raleigh Area Office within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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 (M0815)
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, 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 (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
September 10, 2015
Date
2
0120132831
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132831