0520140251
09-25-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140251
Appeal No. 0120132859
Agency No. 2003-X002-2013100579
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120132859 (January 14, 2014). 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).
Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity when, on March 16, 2012, an Agency attorney tried to intimidate him by making threatening gestures and blocking him from exiting a room prior to giving his deposition.1
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that the complaint was a collateral attack on the Agency's defense because the Agency attorney was immune from suit when acting in his representational capacity.
The appellate decision reversed the Agency's dismissal and remanded Complainant's complaint to the Agency for further processing. Specifically, the appellate determined that "the matter states a claim." The appellate decision noted that the Agency cited several Commission cases for the proposition that an agency attorney was immune from suit when acting in his representational capacity. The appellate decision, however, found that the Agency's proposition, while valid, did not apply here because alleged physical intimidation did not constitute conduct within an agency attorney's representational capacity. In so finding, the appellate decision noted that the cited Commission cases involved allegations that an agency attorney cross-examined a complainant in the presence of a certain individual, submitted false answers to interrogatories, made statements in connection with the validity of a complainant's claim, instructed a witness not to talk to a complainant, requested depositions, and mailed a certified letter to a complainant. In contrast, the appellate decision found that the instant complaint involved an allegation that the Agency attorney engaged in physical conduct that was reasonably calculated to intimidate Complainant.
In its request for reconsideration, the Agency repeated its previous argument that Complainant's complaint was a collateral attack on the Agency's defense. In addition, the Agency argued that if the alleged physical intimidation was not covered by the Agency attorney's representational capacity, then the Agency was not liable for the alleged conduct under the Bivens2 doctrine because the alleged conduct was outside the scope of the Agency attorney's duties. Moreover, the Agency argued that the appellate decision would open the door for any pro se complainant to try to block an Agency attorney from acting in the Agency's best interests by claiming, as a litigation tactic, that the Agency attorney intimidated him.
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. First, the Agency did not show that the appellate decision clearly erred in finding that the alleged physical intimidation did not constitute conduct within an agency attorney's representational capacity. Specifically, we note that the appellate decision distinguished the instant complaint from the Commission cases cited by the Agency on appeal. Moreover, we note that the Agency's request did not cite to any cases where the Commission has found that such physical intimidation constitutes conduct within an agency attorney's representational capacity. Second, the Agency did not show that Complainant's allegation is not within the purview of the 29 C.F.R. Part 1614 EEO complaint process. Although the appellate decision found that the alleged conduct did not constitute conduct within the Agency attorney's representational capacity, it is clear that the alleged conduct involved an employee's actions in the workplace. Third, we are not persuaded by the Agency's speculative argument about pro se complainants alleging intimidation, as a litigation tactic, to try to block an Agency attorney from acting in the Agency's best interests.
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. 0120132859 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 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 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.
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's signature
Carlton M. Hadden, Director
Office of Federal Operations
__9/25/15________________
Date
1 Initially, Complainant filed a motion with an Equal Employment Opportunity Commission Administrative Judge (AJ) to amend a prior complaint to include the alleged incident. When the AJ denied the motion, Complainant contacted an EEO Counselor to initiate the instant complaint.
2 In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that individuals have an implied cause of action against federal government officials who have violated their constitutional rights.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520140251
2
0520140251