0120100612___01201001387
04-16-2010
Jerry Hudson, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Jerry Hudson,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal Nos. 0120100612 & 0120101387
Agency Nos. HS09CBP007624, HS10CBP003308, & HS10CBP002721
DECISION
Complainant filed appeals with the Equal Employment Opportunity
Commission (EEOC or Commission) from final agency decisions (FADs)
dated August 31, 2009 (complaint HS09CBP007624) and January 29, 2010
(complaints HS10CBP003308, & HS10CBP002721), dismissing his complaints
of unlawful 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
Complainant formerly worked for the agency as a customs inspector.
He was terminated effective December 19, 2003, during his probationary
period. In complaint HS09CBP007624, dated August 13, 2009 (complaint 1),
complainant alleged that he was subjected to discrimination on the bases
of race/color (black) and reprisal for prior protected EEO activity when:
1. in November 2008, he learned that his former second line supervisor
called black employees "Alabama Porch Monkeys" and made other racial
remarks; and
2. (a) an agency attorney representative, and his former second line
supervisor, influenced a witness, a Customs Border Protection (CBP)
officer, to suppress her EEO hearing testimony in someone else's case, (b)
the second line supervisor had the CBP officer shred unspecified documents
which appeared to be relevant to complainant's EEO investigation on his
removal case, and (c) the port director instructed another supervisor
to suppress saying anything about racist actions by the second line
supervisor or the agency, resulting in false depositions.1
In complaint HS10CBP003308, dated November 5, 2009 (complaint 2),
complainant alleged that he was discriminated against based on race/color,
disability (left knee) and reprisal for EEO activity, as applicable,
when: (1) from 2003 onward, CPB policy required EEO witnesses to submit
their testimony to CBP counsel for vetting prior to submitting it to
the EEO investigator (class action claim), and (2) in September 2003 and
after, the agency did not follow its reasonable accommodation procedures
when it denied his requests for reasonable accommodation. In complaint
HS10CBP002721, dated January 7, 2010 (complaint 3), complainant re-alleged
claim 2 above.
Complainant was terminated in 2003 for failing to immediately report a
bribery attempt, inability for asserted medical reasons to perform his
job, and unexcused absence. He filed an EEO complaint alleging that he
was discriminated against based on his race/color and disability when
he was terminated. Following an investigation, an EEOC Administrative
Judge (AJ) made a decision without a hearing in June 2005 finding no
discrimination. The AJ's decision discussed complainant's attempt to
secure reasonable accommodation prior to his removal, and in finding
no disability discrimination, found in part that complainant was not
an individual with a disability. In August 2005, the agency fully
implemented the AJ's decision.
In October 2005, complainant filed a civil action in the United States
District Court, Western District of Washington challenging his removal.
In August 2007, the district court found complainant was not discriminated
against based on his race or disability or retaliated against for the
EEO activity of making reasonable accommodation requests when he was
terminated. The court found that complainant was not an individual
with a disability.2 See Hudson v. Department of Homeland Security,
2007 WL 2288062 (W.D. Wash. 2007).
Complainant appealed to the United States Court of Appeals for the Ninth
Circuit, which affirmed the District Court's decision in November 2008.
It found that the removal for failure to immediately report a bribe and
frequent absence were legitimate, nondiscriminatory reasons to remove
complainant, and complainant did not show pretext. Hudson v. Department
of Homeland Security, 304 Fed.Appx. 540, 2008 WL 5272746 (C.A. 9 Wash.).
Meanwhile, in October 2009 complainant filed a motion with the District
Court asking it to vacate its judgment. He argued, among other things,
that he discovered new evidence that his former second line supervisor
made racial remarks and that the agency covered up evidence. In November
2009 the Court denied the motion, finding that such a motion must be
made no more than a year after the entry of judgment or order or date
of the proceeding. In December 2009 the Court denied complainant's
motion for reconsideration. Complainant filed an appeal with the Ninth
Circuit, and in February 2010, the Court affirmed the district court's
orders denying complainant's motions to vacate the judgment and for
reconsideration. Complainant then filed a motion for reconsideration,
which is still pending before the Ninth Circuit.
Meanwhile, on June 5, 2009, complainant filed a motion with the
EEOC, Seattle District Office, to reconsider its judgment finding no
discrimination on his termination. Complainant made arguments similar
to the above. On June 15, 2009, an EEOC AJ orally denied the motion,
and followed this up with a memorandum and order on October 29, 2009.
The AJ reasoned that (a) complainant gave no legal basis which would
support the AJ's continuing jurisdiction over the matter, (b) rather than
constituting newly discoverable evidence, complainant's motion was no
more than an admission that counsel failed to properly conduct discovery
and interview all available witnesses, and (c) the allegations of newly
discovered evidence were merely allegations arguing a new theory of the
cases, rather than factual evidence.
Turning back to the complaints before us, the agency dismissed claim 1 of
complaint 1 for failure to state a claim and failure to timely initiate
EEO counseling. 29 C.F.R. � 1614.107(a)(1) & .107(a)(2). It reasoned
that complainant was not harmed because the alleged misconduct did
not rise to the level of actionable harassment, was not directed at
complainant, had no effect on his employment, and would not reasonably
likely deter EEO activity. On timeliness, it found that complainant
learned of the alleged misconduct 1 by November 2008, but did not initiate
EEO counseling until August 2009, beyond the 45 calendar day time limit
for doing so.
The agency dismissed claim 2 of complaint 2 and complaint 3 for stating
the same claim as in complainant's removal complaint, which included
claims of denial of reasonable accommodation which were already decided
by an EEOC AJ. The agency bifurcated complaint 2 to split off claim
1, the class action claim. The class action claim is complaint number
HS10CBP00281200101, and was forwarded by the agency to an EEOC hearings
unit for a ruling on class certification.3
On appeal, complainant argues that complaint 1 included claim 2, and
both claims of that complaint state a claim. He also argues that he was
unaware of the 45 calendar day time limit to initiate EEO counseling.
In opposition to the appeal, the agency argues that complainant failed
to timely appeal the August 31, 2009, FAD. The FAD was issued by the
agency's Office of Civil Rights and Civil Liberties (CRCL) in Washington,
D.C. While the agency concedes that that the August 31, 2009, FAD was
returned to the agency by the postal service without explanation, it
argues that at complainant's request, on October 5, 2009, the Deputy
Director of the agency's Complaint Processing Center in California
sent him a copy of the FAD by email, which complainant acknowledged
receiving that day. Complainant concedes this, and the record shows
that Deputy Director advised complainant that the 30 day time limit to
file an appeal began running the day he received the FAD. In reply to
the agency's opposition, complainant argues that he secured an attorney
representative, and advised the Deputy Director of this on September 24,
2009. Complainant submits a copy of a September 24, 2009, designation of
attorney representative letter which was directed to the Deputy Director.
In opposition to the appeal, the agency reiterates that complainant
failed to timely initiate EEO counseling on claim 1 of complaint 1,
and adds the same is true for claim 2 of the same complaint. For both
claims, complainant contended that he learned of much of the events in
November 2008. The agency argues that complainant was aware of the
time limit to initiate EEO counseling, as evidenced by his prior EEO
complaint on his termination. The agency reiterates that claim 1 of
complaint 1 fails to state a claim, and argues the same for claim 2 of
this complaint. On claim 2, the agency argues that to the contention
that the agency pressured witnesses to suppress evidence creates claims
for those witnesses, not complainant. The agency, referring to the
administrative and court litigation, also argues that complaint 1 has
already been litigated and is a collateral attack on this litigation.
In reply to the agency's opposition, complainant argues that complaint 1
is a new, independent complaint which has not been previously litigated.
Complainant argues that he was not aware of the 45 calendar day time limit
to initiate EEO counseling, suggesting that he forgot the time limit over
the passage of time. Complainant does not deny that he also seeks to use
what he characterizes as new evidence to reopen the litigation sustaining
his removal. He argues that collateral attacks are allowed when there
is an allegation of extrinsic fraud committed in a prior proceeding.
On appeal for complaints 2 and 3, complainant argues that he did not learn
of the agency's written reasonable accommodation procedures until October
1, 2009, and hence claim 2 of complaint 2 and complaint 3 are actionable.
He also reiterates arguments made in his prior appeal and reply.
As an initial matter, we find that complainant timely appealed the FAD
dated August 31, 2009. It is uncontested that the agency's initial
mailing to complainant was returned by the postal service to the agency
without explanation. The Deputy Director of the agency's Complaint
Processing Center in California then emailed complainant the FAD,
which he received on October 5, 2009. Previously, complainant sent
the Deputy Director a designation of representation letter that he
was represented by an attorney, which gave the name and address of
his attorney. Complainant filed his appeal on November 18, 2009.
While the time limit to file an appeal was 30 days from receipt of the
FAD, when a complainant is represented by an attorney of record, the 30
day time period is calculated from receipt of the FAD by the attorney.
29 C.F.R. � 1614.402(a) and (b). As the agency did not send a copy of
the FAD to the attorney on October 5, 2009, we deem the appeal to be
timely filed. Complainant timely appealed the January 29, 2010 FAD on
February 24, 2010.
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. The Court explained that an "objectively hostile or abusive
work environment [is created when] a reasonable person would find
[it] hostile or abusive" and the complainant subjectively perceives it
as such. Harris, supra at 21-22. Thus, not all claims of harassment
are actionable. Where a complaint does not challenge an agency action or
inaction regarding a specific term, condition or privilege of employment,
a claim of harassment is actionable only if, allegedly, the harassment
to which the complainant has been subjected was sufficiently severe or
pervasive to alter the conditions of the complainant's employment.
To the extent that claim 1 of complaint 1 is a new independent claim, as
complaint argues, we find that it fails to state a claim of actionable
harassment. Given that complainant did not even learn of the alleged
harassment until almost five years after he left the agency's employ,
we fail to see how it constituted an abusive work environment for
complainant.
To the extent that complainant is raising claim 1 as evidence that
his December 2003 removal was discriminatory, we find it constitutes
an impermissible collateral attack on prior and ongoing litigation in
federal court challenging the removal. Federal courts have already
upheld the removal, found it not to be discriminatory, and have denied
complainant's request thus far to vacate the district court's judgment
thereon. The EEOC, an administrative body, does not have authority to
disturb these findings of the federal courts. See 29 C.F.R. � 1614.409,
which requires the Commission to terminate the processing of an appeal
where a complainant files a civil action on the same matter.
By the same token, we find that claim 2 of complaint 1 fails to state
a claim. While complainant contends this is an independent claim,
this is not supported by the record. Claim 2 is a contention that the
agency suppressed evidence to prevent him from proving discrimination in
his removal complaint. See Henry v. United States Postal Service, EEOC
Appeal No. 01972956 (December 11, 1998)(allegation that agency officials
provided false, misleading, and perjured testimony in a civil action
in which he was a party does not state a separate and independent claim
of employment discrimination, but is more in the nature of a collateral
attack on the proceedings of the civil court). Applying the same analysis
of claim 1 to claim 2, we do not have authority to disturb the finding
of the federal courts regarding the termination matter.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) and .107(a)(2). This time limit shall be extended when
the individual shows he was not notified of the time limits and was
not otherwise aware of them. 29 C.F.R. � 1614.105(a)(2). As a previous
participant in the EEO process, complainant is presumed to be cognizant of
the time limitations for making counselor contact. Coffey v. Department
of the Navy, EEOC Request No. 05901006 (November 16, 1990).
Because complainant learned of the events in complaint 1 by November 2008,
his initial EEO contact of August 2, 2009, was beyond the 45 calendar
day time limit to initiate EEO counseling.
The agency properly dismissed claim 2 of complaint 2 and complaint 3 for
stating the same claim as in complainant's removal claim, which included
claims of denial of reasonable accommodation that had already been decided
by an EEOC AJ. Complainant argues that the agency failed to follow
its reasonable accommodation procedures, and hence he has a new claim.
We disagree. The reasonable accommodation procedures do not give rise
to a cause of action apart from the Rehabilitation Act and Title VII,
which he has already litigated before the EEOC AJ and in the courts
regarding his denial of reasonable accommodation claim.
The agency's FADs are affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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
April 16, 2010
__________________
Date
1 The FAD did not characterize the complaint as containing claim 2, but a
review of the complaint shows complainant alleged this matter. On appeal,
complainant also contends that his complaint should be defined to include
the claim that he was subjected to reprisal for prior EEO activity when
from 2003 onward, CPB policy required EEO witnesses to submit testimony
to CBP counsel for vetting prior to submission to the EEO investigator.
As detailed below, this later matter is a class claim which is being
separately processed.
2 The court found that complainant failed to exhaust his administrative
remedies on his reprisal claim for Title VII EEO activity.
3 According to the Commission's case tracking system, an EEOC AJ denied
class certification on March 19, 2010. No appeal has been docketed
yet.
??
??
??
??
2
0120100612
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100612 & 0120101387