0120110652
08-29-2012
Jess C. Rajan, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Jess C. Rajan,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120110652
Agency No. FSIS-CF-2009-00321
DECISION
On November 2, 2010, Complainant filed an appeal from the Agency's September 27, 2010 final decision concerning his equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the record is adequately developed to allow the Commission to determine if the Agency subjected Complainant to discrimination and hostile work environment harassment on the bases of race, national origin, color, age, and reprisal for prior protected EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Chief of the Chemistry Quality Assurance Branch, GS-14, at the Agency's Office of Public Health Science (OPHS), Laboratory Quality Assurance Division (LQAD) in Athens, Georgia. Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and hostile work environment harassment on the bases of race (Asian), national origin (Indian), color (Brown), age (70), and reprisal for prior protected EEO activity when:
1. On January 20, 2009, the Director of LQAD (S1), the Executive Associate (S2), and the Scientific Advisor (SA) did not allow him to cancel a Chemistry Issues Steering Group meeting scheduled for later that day and harassed him during the meeting;
2. On January 20, 2009, S1 and S2 did not allow him to conduct orientation for a new employee under his supervision;
3. On January 21, 2009, the Director of the Civil Rights Division (D1) disclosed information about his EEO complaint to S1, S2, and SA;
4. On January 21, 2009, the Director of the Internal Control and Audit Division (D2) collaborated with S1, S2, and SA in sending out a report that "contained retaliatory negative remarks about [him];"
5. On February 3, 2009, S1 informed him that his work accomplishments from July 2008 to February 2009 would be discarded and would not count for a proposed pay-for-performance evaluation and rating during 2009;
6. On February 10, 2009, S1 and S2 implemented new performance standards for him for the appraisal period from February 2009 to September 2009 which contained ambiguities, inconsistencies with the Agency's policy statements, and unclear performance measures;
7. On February 23, 2009, S1 issued him a Letter of Caution; and
8. On or about May 8, 2009, the Assistant Administrator (AA) and the Administrator (A1) denied his request for a reassignment to the OPHS in Washington, DC.
At the conclusion of the investigation, the Agency 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. Subsequently, the Agency issued a final decision concluding that Complainant failed to prove that it subjected him to discrimination as alleged. The Agency summarized Complainant's formal complaint and statement,1 and the affidavit testimonies of S1, S2, SA, D1, D2, AA, and A1. The Agency analyzed each claim as a disparate treatment claim and then the claims together as a harassment claim. Regarding the bases of race, national origin, and color, the Agency found that Complainant failed to establish a prima facie case of disparate treatment in claims 3-5 and 8, and that Complainant failed to rebut the legitimate, nondiscriminatory reasons articulated by the Agency in claims 1-2 and 6-7. Regarding the bases of age and reprisal, the Agency found that Complainant failed to establish a prima facie case of disparate treatment. Regarding Complainant's hostile work environment claim, the Agency found that none of the actions complained of were based on his race, national origin, color, age, or prior EEO activity.
CONTENTIONS ON APPEAL
On appeal, Complainant presented three arguments. First, Complainant argued that the EEO Investigator was not a neutral party in the investigation and in the preparation of the ROI. Specifically, Complainant asserted that the EEO Investigator "was very hostile and was clearly paid to represent the [responsible management officials] and attempted to discredit [his] complaints." Second, Complainant argued that the Letter of Caution contained unsubstantiated accusations from S1 that he disclosed certain confidential program information to other employees. Third, Complainant argued that AA and A1 failed to reassign him, even though he identified at least two vacant GS-14 equivalent positions in the OPHS in Washington, DC.
The Agency did not submit a statement or brief in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to
29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Adequacy of the Record
An agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. 29 C.F.R. � 1614.108(b). An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Id.
Upon review, we find the record to be insufficiently developed for us to determine if the Agency subjected Complainant to discrimination and hostile work environment harassment on the bases of race, national origin, color, age, and reprisal. Specifically, we find that the record contains inadequate documentary and testimonial evidence regarding claims 4, 6, and 8.
In claim 4, it is clear from Complainant's formal complaint and investigative statement that the unwelcome conduct at issue is a January 21, 2009 report sent out by D2. ROI, at 17, 53. While the record includes some testimonial evidence from D2 about the contents of the report, the record does not contain a copy of the actual report. As Complainant alleged in his formal complaint that the report "contained retaliatory negative remarks about [him]," we find that the report itself would be evidence that is material to the complaint and relevant to one of the issues raised in the complaint.
In claim 6, it is clear from Complainant's formal complaint and investigative statement that the unwelcome conduct at issue involves the new performance standards implemented in February 2009 by S1 and S2. Id. at 18. While the record includes some testimonial evidence from S1 and S2 about the changing of Complainant's performance standards, the record does not contain a copy of either his new performance standards or his old performance standards. In addition, S1's testimony references a January 27, 2009 email in which he informed Complainant about the changes to his performance standards. Id. at 74. The record, however, does not contain a copy of that email. As Complainant alleged in his formal complaint that his new performance standards contain ambiguities, inconsistencies with the Agency's policy statements, and unclear performance measures, we find that the performance standards themselves and any related emails would be evidence that is material to the complaint and relevant to one of the issues raised in the complaint.
In claim 8, Complainant alleged that the Agency denied his request for reassignment. Specifically, Complainant stated in his formal complaint and investigative statement that he identified two vacant positions (Deputy Director in the Risk Assessment Division; Chief of the Chemical Residue Branch in the Risk Assessment Division) under AA's supervision in the OPHS in Washington, DC and, directly and through the EEO Counselor, requested that AA and A1 reassign him. Id. at 21, 54. The record includes the EEO Counselor's April 21, 2009 and April 27, 2009 emails to AA, forwarding him information from Complainant about the two identified vacancies. Id. at 134-35. The record, however, contains no documentation whatsoever about the two positions to which Complainant requested reassignment. For example, there are no SF-50s (Notification of Personnel Action), emails, or organization charts showing whether the two positions were filled or vacant at the time of Complainant's request for reassignment. Moreover, the testimonial evidence given by AA is unclear as to whether the two positions were vacant. AA testified, "[Complainant] is a Chemist and I don't believe the OPHS office in DC had any vacancies in his field at the time." Id. at 92. We note that AA did not explain why he held such a belief or how he reached such a determination. In addition, it is unclear to us whether AA meant: (a) the two positions were vacant but were not in Complainant's field; (b) the two positions were not vacant; or (c) something else. Further, we note that AA did not provide any testimony concerning the identified vacancies in the OPHS, but only testified about Complainant's interest in a position in the Office of Catfish Inspection Program. Id. at 98.
Based on the above, we conclude that the present record lacks the necessary information upon which to adequately determine if the Agency's actions were discriminatory. Accordingly, we remand this case back to the Agency to conduct a supplemental investigation.2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND Complainant's complaint in accordance with the Order below.3
ORDER
The Agency is ORDERED to take the following actions:
1. The Agency shall conduct a supplemental investigation to develop an adequate factual record regarding Complainant's complaint. The Agency shall obtain all pertinent evidence to address the complaint including, but not limited to:
a. A copy of the January 21, 2009 report sent out by D2;
b. Copies of Complainant's old (prior to February 2009) and new (starting in February 2009) performance standards;
c. A copy of S1's January 27, 2009 email to Complainant regarding his performance standards;
d. Any SF-50s, emails, organization charts, or other contemporaneous documentation showing whether the following positions in the OPHS in Washington, DC were filled or vacant in April/May 2009, around the time of Complainant's request for reassignment:
i. The Deputy Director in the Risk Assessment Division;
ii. The Chief of the Chemical Residue Branch in the Risk Assessment Division;
e. Sworn affidavits from AA and A1 explaining in detail why they did not reassign Complainant to the Deputy Director and Chief of the Chemical Reside Branch positions; and
f. A rebuttal statement from Complainant after he has had an opportunity to review the requested documents and the sworn affidavits from AA and A1.
2. The Agency shall complete its supplemental investigation and issue a new final decision, together with the appropriate appeal rights, within ninety (90) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. A copy of the Agency's new final decision 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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
___8/29/12_______________
Date
1 Complainant did not provide an affidavit, but instead submitted a statement with supporting documentation.
2 Although we find that the record was not adequately developed, there is no evidence that the EEO Investigator exhibited any bias against Complainant and in favor of the Agency. We note that the EEO Investigator was a contract investigator and not an Agency employee.
3 Because of our determination regarding claims 4, 6, and 8, and in order to avoid fragmentation of Complainant's overall harassment claim, we are remanding all the claims in Complainant's complaint at this time.
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0120110652
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110652