0520140104
09-22-2015
Complainant, v. Loretta E. Lynch, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Loretta E. Lynch,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Request No. 0520140104
Appeal No. 0120132527
Agency No. BOP-2013-0311
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in Complainant v. Department of Justice, EEOC Appeal No. 0120132527 (November 27, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(c).
In February 2013, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity when, in July or August 2010, it conducted an "EEO background check" in response to her EEO cases, which resulted in an Office of Internal Affairs (OIA) investigation on her. According to Complainant, she learned of the "EEO background check" in September 2012 during a grievance arbitration related to her May 2011 removal. The Agency's removal decision had cited information revealed during the OIA investigation.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(4), for having raised the matter in a negotiated grievance procedure that permits allegations of discrimination. Specifically, the Agency found that Complainant filed a June 2011 grievance on the same matter.
The appellate decision reversed the Agency's dismissal and remanded Complainant's complaint for further processing. Specifically, the appellate decision found that the grievance and the complaint raised two distinct claims. The appellate decision noted the Agency's argument that the two matters were inextricably intertwined. The appellate decision, however, determined that the grievance alleged that the removal was retaliatory whereas the complaint alleged that the "EEO background check" was retaliatory. The appellate decision reasoned that, because of the Commission's "strong public policy interest in ensuring that agencies do not conduct informal or formal investigations to obtain derogatory information on a [c]omplainant in response to her filing an EEO complaint," it was inclined to treat claims about such alleged investigations as distinct matters which independently state a claim of discrimination. The appellate decision cited the following legal authority to support its treatment of claims about such alleged investigations: (1) EEOC Enforcement Guidance on After-acquired Evidence and McKennon v. Nashville Banner Publishing Co., EEOC Notice No. 915.002, � III.A
(Dec. 14, 1995); and (2) Smith v. Department of the Navy, EEOC Petition No. 03950060 (Nov. 5, 1995).1
In its request for reconsideration, the Agency contended that the appellate decision clearly erred in finding that the grievance and the complaint raised two distinct claims. Specifically, the Agency argued that the removal allegation in the grievance was inextricably intertwined with the "EEO background check" allegation in the complaint because the latter allegation arose out of, and was raised during, the grievance arbitration. In addition, the Agency argued that the alleged "EEO background check" was an isolated incident that did not rise to the level of a hostile work environment.
Upon review, we find that the Agency's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, the Agency did not show that the appellate decision clearly erred in finding that the grievance and the complaint raised two distinct claims.
Here, the Agency did not challenge the legal authority cited by the appellate decision to support its treatment of Complainant's retaliatory "EEO background check" allegation as a distinct claim. In addition, the grievance and the complaint forms themselves reflect that Complainant elected to proceed under the negotiated grievance procedure for her removal claim and to proceed under the EEO complaint process for her "EEO background check" claim. See generally 29 C.F.R. � 1614.301(a) (an election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance and an election to proceed under the EEO complaint process is indicated by the filing of a written complaint).
For example, Complainant wrote in her grievance, "The Agency's determination to terminate [my] employment ... was in retaliation for [my] prior EEO activity." In contrast, Complainant wrote in her complaint, "I am alleging retaliation and retaliatory harassment ... I learned that the [Agency] had conducted an 'EEO background check' on me in approximately July or August 2010 as a result of my two then pending EEO cases. Following the 'EEO background check[,]' the Agency initiated an OIA investigation of me. I was subjected to a hostile work environment as a result of my prior EEO activity as a result of the background check, investigation, and other events leading up to my termination."2 Finally, we note that the Commission, in the case cited by the appellate decision, advised the agency that an initiation of a background check in retaliation for a complainant's filing of a prior EEO complaint was conduct that may contribute to a discriminatory work environment and that the agency could be held liable for the retaliatory background check. See Smith, EEOC Petition No. 03950060.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120132527 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims, as defined in this decision, in accordance with 29 C.F.R. � 1614.108. 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 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.
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 signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/22/15________________
Date
1 The appellate decision quoted extensively from the cited legal authority.
2 The appellate decision noted Complainant's clarification on appeal that the complaint did not include her termination.
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