0120161758_2686105512261788
03-28-2017
Emanuel W.,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Emanuel W.,1
Complainant,
v.
Elaine L. Chao,
Secretary,
Department of Transportation,
Agency.
Appeal Nos. 0120161758, 0120162686, 0120161055, 0120161229, 0120161788
Agency Nos. 201526243FRA03, 201425465FRA03, 201425847FRA03,
201425850FRA03, 201426036FRA03
DECISION
Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decisions concerning his complaints of unlawful employment discrimination alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 633(a), and Section 501 of the Rehabilitation Act, as amended, 29 U.S.C. � 791 et seq. As the complaints at issue here involve related and often overlapping events, we are exercising our discretion, pursuant to 29 C.F.R. � 1614.606, to consolidate Complainant's five appeals together for adjudication in the instant decision.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Railroad Safety Inspector, GS-12, assigned to the Agency's Federal Railroad Administration, Region 3, in Atlanta, Georgia. Complainant's telework station was in Johnson City, Tennessee.
Complainant's duties as a Railroad Safety Inspector required him to conduct unannounced inspections of freight cars and locomotives, and provide an inspection report to the inspected railroad, as well as to his supervisors. Inspectors traveled within an assigned territory conducting the inspections.
Complainant started working at the Agency in 1989, but was at some point was terminated and later reinstated as a result of a court decision in his favor. Complainant returned to work in October 2011. Subsequent to his return to work, Complainant filed a number of EEO complaints, and management was at least generally aware of these complaints at the time of the events at issue.
A review of the instant matters reveals that Complainant alleged that he was discriminated against on the bases of sex (male), disability, age (67), and/or reprisal for his prior EEO activity when:
Agency Complaint No. 2014-25847-FRA-03 (EEOC Appeal No. 0120161055)
(1) On May 13, 2014, Complainant was directed to cease all contact with CSX Railroad Corporation until further notice.
Agency Complaint No. 2014-25850-FRA-03 (EEOC Appeal No. 0120161229)
(2) Complainant's Alternative Work Schedule (AWS) for pay periods 12-15 (May 18, 2014-July 11, 2014) was not approved.
(3) Management adjusted his time card to code him absent without leave (AWOL) for May 19, 2014, and not credit him for the hours he worked on May 18, May 25, and June 1, 2014.
(4) On May 30, 2014, the Agency would not reimburse his travel expenses.
(5) On June 18, 2014, one of his vouchers was disapproved.
Agency Complaint No. 2014-26036-FRA-03 (EEOC Appeal No. 0120161788)
(6) On August 18, 2014, he learned that management provided false and misleading information in his worker's compensation claim.
(7) After he furnished medical information to Human Resources concerning his tinnitus, management harassed him and Human Resources staff failed to properly assist him.
(8) His performance evaluation, sent to him on September 11, 2014, included falsified information by his supervisor and an overall performance rating of unacceptable.
(9) In September 2014, he was denied official duty time to prepare an EEO complaint.
(10) In August and September 2014, he was harassed by management concerning IT connectivity issues.
Agency Complaint No. 2014-25465-FRA-03 (EEOC Appeal No. 0120162686)
(11) In October 2013, a co-worker harassed, defamed, and violated his privacy and management failed to take corrective action.
Agency Complaint No. 2015-26243-FRA-03 (EEOC Appeal No. 0120161758)
(12) On January 13, 2015, Complainant was issued a notice of proposed removal.
After conducting investigations into these complaints,2 the Agency issued separate final decisions in each of the five complaints concluding that Complainant failed to prove he was subjected to discrimination and/or unlawful retaliation as alleged.
The instant appeals from Complainant followed.
ANALYSIS AND FINDINGS
As an initial matter, our review here is limited to the laws enforced by this Commission. Consequently, we will not address Complainant's claims made under the United States Constitution with regard to his right to free speech and due process.
Claim 12 - Notice of Proposed Removal
On January 13, 2015, Complainant was issued a proposal to remove letter from the Regional Administrator (male, age 52). Complainant filed a response. By letter dated March 19, 2015, the Director, Regional Operations (male, age 55), who was located in the Agency's Washington, D.C. Headquarters, issued a final decision on the proposal, upholding the cited charges and specifications, and removing Complainant from employment effective March 26, 2015. Complainant was advised that he had two options to challenge his removal: (1) to file an appeal with the Merit Systems Protection Board (MSPB), or (2) to file a grievance under the Agency's negotiated grievance system.
We take administrative notice that Complainant appealed his removal to the MSPB, and the matter has been docketed as MSPB No. AT-0752-16-0466-I-1. This mixed case appeal3 is currently pending before the MSPB.
Where, as here, an EEO complaint is filed on a proposed action and the Agency subsequently proceeds with the action, that action (in this case the final removal decision) is considered to have merged with the proposal. See Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568 (October 9, 1997). Applying this principle here, Complainant no longer has a viable EEO complaint in Agency Complaint No. 2015-26243-FRA-03 concerning the proposal to remove because this claim has now merged with the final removal decision, a matter that is currently pending before the MSPB. Accordingly, EEOC Appeal No. 0120161758, concerning the proposal to remove is hereby DISMISSED, as the matter of whether or Complainant was subjected to discrimination and/or unlawful retaliation when he was removed from the Agency in March 2015 is currently pending before the MSPB. To the extent that Complainant is alleging damages as a result of the proposed removal, he should raise such claims with the MSPB.
After the MSPB issues its final decision on Complainant's mixed-case appeal concerning his removal, he may file a petition with the EEOC to review the MSPB's decision on his claims of discrimination and retaliation pursuant to 29 C.F.R. � 1614.303.
Claims 1, 8 and 10
Additionally, upon review of the notice of proposed removal, and the final removal decision which upheld all the cited "charges and specifications," we find that claims 1, 8 and 10 (which are the subjects of EEOC Appeal No. 0120161055 and part of the claims in Appeal No. 0120161788) are directly addressed in the charges and specifications provided by the Agency to support the proposed removal and specifically upheld in the final removal decision.
Claim 1, concerning the direction that Complainant cease all contact to with CSX, is directly addressed in Charge 2 (Failure to Follow Supervisory Instruction), Specification C of the notice of proposed removal (later adopted in final removal letter). Claim 8, concerning Complainant's September 2014 performance appraisal, is also addressed in Charge 2 (Failure to Follow Supervisory Instruction), Specifications A, B and C of the proposed removal. Claim 10, concerning IT connectivity issues, is addressed in Charge 1 (Disrespectful Conduct), Specification A of the proposed removal.
As such, these incidents and Complainant's related allegations of discrimination and retaliation will be addressed by the MSPB when it adjudicated the appeal on Complainant's removal. Accordingly, these claims are also DISMISSED.
Again, as noted above, after the MSPB issues its final decision addressing the charges and specifications supporting Complainant's removal, Complainant may file a petition with EEOC for review of the MSPB's decisions on his claims of discrimination and retaliation.
Claims 2 - 5 and 7
Claims 2 - 5, addressed in Agency Complaint No. 2014-25850-FRA-03, has already been addressed by this Commission in EEOC Appeal No. 0120150967 (March 23, 2016), request for reconsideration denied, EEOC Request No. 0520160308 (July 13, 2016). While this previously decided appeal dealt with another Agency complaint number (2014-25849-FRA-03), our decision noted that both complaints dealt with essentially the same issues.
Complainant alleged that on May 13, 2014, he informed his supervisor of hearing difficulties he was experiencing due to an increased ringing in his ears due to his tinnitus. The supervisor, by email dated May 16, 2014, instructed him to schedule a medical appointment to determine his hearing ability and directed him not to conduct inspections on railroad property or otherwise "place himself in harm's way" until his medical condition was evaluated and any medical restrictions imposed. However, it appears that Complainant continued to perform inspections despite this instruction, and the record shows that on May 19, 2014, he fell while walking along some railcars and sustained several injuries. Claims 2 - 5, concerning the denial of his AWS schedule, the coding of his time card, and the denial of a travel request and a voucher, all directly relate to the fact that Complainant was allegedly conducting train inspections when he was instructed not to do so.
EEOC Appeal No. 0120150967, Request No. 0520160308, explicitly indicated that one of the claims it was addressing was:
Upon raising [his] hearing disability and tinnitus condition to [his] manager, [his] manager requested that [Complainant] obtain a hearing test and stated that [he] should telework, as to not place himself in harm's way, until the hearing test is performed.
The Commission remanded the issue back to the Agency for investigation and further processing as both a claim of disability discrimination, as well as retaliatory harassment.
Thus, it is clear that Claims 2 - 5 in the instant appeal are identical to the matter which we have already remanded to the Agency separately for continued processing. We also find that Claim 7 is inextricably intertwined with these same issues and should be processed with them.
Accordingly, we VACATE the Agency's final decision in Agency Complaint No. 2014-25850-FRA-03 and REMAND it for consolidation with Agency Complaint No. 2014-25849-FRA-03, if still pending, as a claim of disability discrimination and retaliatory harassment.
Claim 6 - False and Misleading Information to Workers' Compensation
With respect to claim 6, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). Complainant alleged discrimination when Agency management controverted his OWCP claim. The EEO process is not the proper forum for Complainant to have raised this challenge. As Complainant is challenging actions directly related to the adjudication of his worker's compensation claim, he must raise such matters with the Department of Labor, not within the EEO complaint 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).
Claim 9 - Official Time
With respect to claim 9, that he was denied official time to prepare an EEO complaint, the provision of official time is governed by 29 C.F.R. � 1614.605, and regards complaint processing. Because it regards complaint processing, we do not construe Complainant's allegation about official time to constitute an independent claim of discrimination or retaliation, rather a request for review of the denial of official time in accordance with 29 C.F.R. � 1614.605. If a complainant is an employee of the Agency, he is entitled to a reasonable amount of official time, if otherwise on duty, to prepare a complaint and respond to agency and EEOC requests for information. In September 2014, Complainant initially requested 80 hours. The Agency granted him 16 hours of official time. We find that the Agency granted Complainant sufficient time to work on his complaint.
Claim 11 - Co-worker Harassed and Defamed Him
Finally, with respect to claim 11, that a co-worker defamed and harassed him, the record reflects that management asked the co-worker to call CSX Railroad to find out if Complainant's brother worked there, to prevent a conflict of interest given Complainant's position as a Railroad Safety Inspector. Complainant claims he did not begin conducting inspections of CSX until 2012, after his brother, a CSX employee, retired. 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. We find that, in the instant case, the action alleged lacked the requisite pervasiveness or severity necessary to alter the conditions of Complainant's employment and, thus, fails to state a viable claim of discriminatory or retaliatory harassment.
CONCLUSION
Accordingly Claims 1, 8, 10 and 12 are DISMISSED as part of Complainant's removal appeal currently pending before the MSPB. The Agency's decisions with respect to Claims 6, 9 and 11 are AFFIRMED. The Agency's final decision concerning Claims 2 - 5 and 7 is hereby VACATED and these claims are REMANDED to the Agency for further processing and consolidation with Agency Complaint No. 2014-25849-FRA-03 in accordance with the following Order.
ORDER
The Agency is ordered to process the remanded claims (Claims 2 - 5 and 7) by consolidating it with Agency Complaint No. 2014-25849-FRA-03 if that complaint has not already closed.4 These matters should be considered both a claim of disability discrimination, as well as one of retaliatory harassment, when Complainant was directed not to conduct railroad inspections until his hearing was examined and the events described in Claims 2 -5 and 7 occurred. Within ninety (90) calendar days of the date this decision is issued, the Agency shall conduct any supplemental investigation necessary to develop the evidence necessary to make a reasoned adjudication on both the disability and retaliation claims at issue here. Complainant should then be issued another right to request a hearing on the matter before an EEOC Administrative Judge. If Complainant does not request a hearing, the Agency should issue a final decision on the matter pursuant to 29 C.F.R. � 1614.110(b).
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 (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 28, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 In some instances, Complainant's requests for a hearing were dismissed by an EEOC Administrative Judge (AJ). We note that on appeal, Complainant is not seeking to reinstate his request for a hearing on any of his complaints. Instead, he asks for a decision on the merits and seeks declaratory judgment and make-whole relief. Therefore, it is not necessary for us to address the issue of whether or not the AJ erred in dismissing his various requests for a hearing or in issuing sanctions.
3 A mixed-case appeal is a complaint of employment discrimination related to or stemming from an action that is appealable to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person may initially file a mixed-case complaint with an agency or may file a mixed-case appeal directly with the MSPB, but not both. 29 C.F.R. � 1614.302(b).
4 If Agency Complaint No. 2014-25849-FRA-03 has already closed, the Agency shall proceed with the continued processing of the subject claims without the consolidation.
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2
0120161758
9
0120161758, 0120162686, 0120161055,
0120161229, 0120161788