0520120598
02-07-2013
Corey V. Walton, Complainant, v. John M. McHugh, Secretary, Department of the Army, (National Guard Bureau) Agency.
Corey V. Walton,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
(National Guard Bureau)
Agency.
Request No. 0520120598
Appeal No. 0120072925
Hearing No. 430-2006-00172X
Agency No. T-0165-NC-A-02-05-RO
DENIAL
In a submission dated August 15, 2012, and received by the Commission on August 20, 2012, the Agency requested reconsideration of the decision in Corey V. Walton v. Department of the Army, EEOC Appeal No. 0120072925 (July 10, 2012). 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(b).
At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Technician, WG-10, at the Agency's Combined Support Maintenance Shop (CSMS) in Raleigh, North Carolina. Complainant, who was a sergeant in the Army National Guard, worked in a civilian capacity at CSMS. On February 23, 2005, Complainant filed an EEO complaint alleging, among other claims, that the Agency discriminated against him on the bases of race (African American) and reprisal for prior protected EEO activity when it removed him from his civilian position on November 6, 2004. The Agency accepted the matter for investigation and, at the conclusion of the investigation, provided Complainant with a copy of the Report of Investigation (ROI) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
The AJ held a hearing on Complainant's complaint and, on April 10, 2007, issued a decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency subsequently issued a final order adopting the AJ's decision, and Complainant appealed to this Commission.
Our previous decision reversed the Agency's final order and found that the decision to terminate Complainant rather than give him more appropriate discipline was motivated by discriminatory animus toward his race and in reprisal for his prior EEO activity. The decision noted that CSMS was racially segregated and that "reprisal was rampant throughout all of CSMS." The decision also noted that management officials used racial epithets in reference to Complainant, repeatedly labeled him a "troublemaker" after he engaged in EEO activity, and ignored recommendations for less-severe discipline In addition, citing Garcia v. Air Force National Guard, EEOC Appeal No. 01A61442 (August 7, 2006), and Birkle v. Department of the Air Force, EEOC Request No. 05931001 (July 15, 1994), the previous decision stated that "[t]he Commission has recognized that National Guard Technicians are covered by Title VII when the alleged discrimination arises from their capacity as Federal civilian employees."1
The previous decision included a Certificate of Mailing indicating that, for purposes of timeliness, the Commission would presume that the decision was received within five (5) calendar days of the date on which it was mailed. The Certificate stated that the decision was mailed to Complainant, Complainant's attorney, and the Agency's Director of EEO Compliance and Complaints Review on July 10, 2012.
In its request for reconsideration, the Agency argues for the first time that the Commission lacks jurisdiction over Complainant's claim. Attaching a copy of a Department of Justice Title VI Legal Manual (January 11, 2011), the Agency asks the Commission to review the Manual "as another potential viable alternative open to Complainant and the EEOC to pursue this matter in another venue." In addition, the Agency states that Complainant "voluntarily separated in June 2011," asserts that National Guard Technicians must maintain membership in their state National Guard, and argues that the Commission cannot compel reinstatement of Complainant to the North Carolina National Guard. The Agency attaches a May 20, 2011, Request for Discharge form signed by Complainant, and a State of North Carolina Department of Crime Control and Public Safety document discharging Complainant from the Army National Guard effective June 15, 2011.2
In response, Complainant argues that the Agency's request was not timely filed. Complainant also argues that the Commission should not consider the Agency's jurisdictional arguments because the Agency failed to raise them below. Alternatively, Complainant asks the Commission to confirm jurisdiction and uphold its previous decision.
By regulation, requests must be filed within thirty (30) calendar days after the party receives the previous decision. 29 C.F.R. � 1614.405(b). A document is timely filed if it is received or postmarked before the expiration of the applicable filing period or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b). In this case, the parties are presumed to have received the previous decision no later than July 16, 2012 (July 15, 2012, was a Sunday). Thirty days from that date is August 15, 2012. The Commission received the Agency's request for reconsideration, which did not contain a legible postmark, on August 20, 2012. Because the Commission received the Agency's request within five days of the expiration of the filing period, the request is deemed timely filed.
We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
As the previous decision noted, the Commission has long recognized that National Guard Technicians are covered by Section 717 of Title VII when the alleged discriminatory action arises from their capacity as federal civilian employees and not from their capacity as uniformed military personnel. EEOC Decision No. 84-4 (May 16, 1984); see also Coombs v. Dep'ts of Army and Air Force, EEOC Request No. 05860067 (June 8, 1987); Brown v. Dep't of Air Force, EEOC Petition No. 0420050011 (May 16, 2007). The Agency did not argue below that the actions at issue here arose in a military capacity. In fact, the August 27, 2004, Proposed Removal issued to Complainant referred to him as "a member of the Association of Civilian Technicians." ROI Exhibit F-16. Further, the challenged action is Complainant's removal from his position as a Heavy Mobile Equipment Technician, WG-10, and it is clear from the record that the position was part of the Wage-Grade series designated for federal civilian employees. Accordingly, we find that the Agency's request fails to meet the criteria of 29 C.F.R. � 1614.405(b).
The Commission, however, on its own motion will modify the Order to reflect that reinstatement is no longer appropriate. In that regard, we note that Complainant does not dispute that he is not eligible for employment as a National Guard Technician because he is no longer a member of the Army National Guard. Accordingly, the Agency shall pay Complainant all back pay, with interest, and benefits that he would have received had he remained continuously employed from November 6, 2004, until June 15, 2011, the effective date of his discharge from the Army National Guard.
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(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120072925, as modified herein, 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
1. Within sixty (60) calendar days from the date this decision becomes final, the Agency will pay to Complainant all back pay, with interest, and benefits commencing November 6, 2004, until June 15, 2011, the effective date of his discharge from the Army National Guard, which he would have received in the absence of discrimination. Back pay shall be computed in conformity with 5 C.F.R. � 550.805. Benefits required to be restored to make appellant whole include, but are not limited to, the following: seniority, sick and annual leave, health and life insurance, any in-grade step(s) and/or promotion(s) to which he would have been entitled. The Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute about the amount of back pay, interest due, and/or other benefits, the Agency will issue a check to the Complainant for the undisputed amount within 60 calendar days of the date this decision becomes final. The Complainant may petition for enforcement or clarification of the amount in dispute. This petition must be sent to the Compliance Officer as referenced in the implementation paragraph below.
2. The Agency is directed immediately to purge its records of all record of or references to the discriminatory insubordination determination and removal action.
3. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Department of the Navy, EEOC Appeal No. 01922369 (January 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. � 1614.110.
4. The Agency is further directed to take appropriate preventive steps to ensure that no employee is discriminated against on the basis of race or is subject to reprisal for engaging in EEO activity. This includes ensuring that the mechanic work area in the CSMS is not segregated by race.
5. The Agency shall conduct a minimum of 16 hours of remedial training, with a focus on discrimination based on race and retaliation, for the managers and supervisors found to have engaged in discrimination, including using racially derogatory remarks and threats of reprisal. The Agency shall further conduct a minimum of 8 hours of training for all other supervisors and managers at CSMS to ensure that acts of discrimination and retaliation are not taken against employees. The Agency shall address these employees' responsibilities with respect to eliminating discrimination in the workplace and all other supervisory and managerial responsibilities under equal employment opportunity law.
6. The Agency shall consider taking disciplinary action against the agency officials found to have discriminated against Complainant. The Commission does not consider training to constitute disciplinary action. The agency shall report its decision. If the Agency decides to take disciplinary action, it shall notify the Commission's Compliance Officer of the action taken. If the Agency decides not to take disciplinary action, it shall inform the Commission's Compliance Officer of the reason(s) for its decision not to impose discipline. If any of the agency officials are no longer employed by the Agency, the Agency shall provide proof of the date of separation.
7. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, and supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Combined Support Maintenance Shop (CSMS) facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (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
February 7, 2013
Date
1 Citing Brazill v. National Guard Bureau, EEOC Appeal No. 01891698 (June 22, 1989), the AJ also noted that the Commission has held that National Guard Technicians are covered by Title VII when the alleged discrimination arises from their capacity as civilian employees.
2 The Agency also argues that "Complainant's complaint was a military complaint and therefore not subject to the 29 C.F.R. Part 1614 process." It appears, however, that this argument concerns a different matter involving a different complainant. We note, for example, that the Agency refers to a probationary technician who was charged with absence without leave from military duty (AWOL). Nothing in the record before us indicates that Complainant was in a probationary status at the time of the discrimination at issue in this complaint or that he was ever charged with being AWOL from military duty.
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0520120598
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520120598