0520110480
10-14-2011
Lester Blount, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (U.S. Secret Service), Agency.
Lester Blount,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(U.S. Secret Service),
Agency.
Request No. 0520110480
Appeal Nos. 0120092692, 0120103369
Hearing Nos. 570-2007-00109X, 570-2009-00505X
Agency Nos. DHS-USS-06-0034,1 DHS-USS-08-00652
DENIAL
The Agency timely requested reconsideration of the decision in Lester
Blount v. Dep’t of Homeland Security, EEOC Appeal Nos. 0120092692,
0120103369 (Apr. 13, 2011). 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).
BACKGROUND
The previous decision consolidated two appeals involving a Canine
Technician in the Secret Service Uniformed Division. In one of the
complaints at issue (DHS-USS-08-0065), Complainant alleged, in part,
that the Agency retaliated against him for prior EEO activity when,
on July 17, 2008,3 his private residence was subjected to an “illegal
raid” and the Agency suspended his security clearance.
I. Congressional Letter
The record on appeal included an April 19, 2010 letter from the Chairman
of the United States House of Representatives Committee on Homeland
Security to the Secretary of the Department of Homeland Security.
The Chairman wrote that his office had been provided EEO and personnel
materials, and summarized the relevant information as follows:
Complainant filed three EEO complaints alleging discrimination and
reprisal. He filed the third EEO complaint in December 2007. Afterwards,
on July 16, 2008, the Agency allegedly ordered Complainant to take a
drug test. The next day, the Agency allegedly raided Complainant’s
home in connection with a criminal investigation involving illegal
steroids. A day later, the Agency allegedly suspended Complainant’s
security clearance and placed him on leave due to the ongoing criminal
investigation.
Complainant amended his third EEO complaint to allege that the Agency
retaliated against him by orchestrating the drug raid on his home
and suspending his security clearance. Later, the U.S. attorney’s
office and the Agency closed the criminal investigation and declined
to prosecute Complainant. Nevertheless, the Agency failed to reinstate
his security clearance.
The Agency began a new investigation into Complainant on February 28,
2010, regarding a voicemail message received in the Office of Chief
Counsel from an individual purporting to be on the staff of the
Congressional Committee on Homeland Security.
The Chairman then wrote that an “investigation into the Third Complaint
uncovered evidence supporting [Complainant’s] complaint . . . . One
of [Complainant’s] coworkers told investigators that he believed
that [Complainant] had been disciplined in retaliation for filing EEO
complaints.”
The Chairman raised further concerns over the circumstances about
the drug testing because there was no paper trail in Complainant’s
personnel file to determine if the Agency adhered to its policy on drug
testing employees.
As for the drug raid, the Chairman referenced a letter he had received
from the Agency’s director, who informed him of the alleged reasons for
the drug raid and security clearance suspension. Finally, the Chairman
finally suggested that the Agency’s new investigation into Complainant
on February 28, 2010 may be driven more by a predetermined outcome than
a legitimate effort to uncover the relevant facts.
II. Previous Decision
Upon review, the Commission determined that the EEOC Administrative
Judges (AJs) assigned to those cases erred in issuing summary judgment
decisions in favor of the Agency because (1) the records in both cases
were inadequately developed for summary disposition; (2) there were
genuine issues of material fact in dispute; and (3) the AJs had made
impermissible credibility determinations. The previous decision remanded
both cases back to an AJ for a hearing.
The previous decision noted that the Chairman’s letter added additional
weight to Complainant’s claims, and advised that all documentation
related to the Congressional investigation referenced by the Chairman
should be produced and added to the record prior to any hearing in
this matter.
In two footnotes, the previous decision also advised that the newly
assigned AJ should determine whether to amend Complainant’s EEO
complaint to add the July 16, 2008 drug test and the February 28, 2010
investigation into Complainant. Regardless of whether these claimed
are added, they should be investigated as background evidence.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency argues that the
previous decision clearly erred in four ways. First, the previous
decision erroneously ordered an AJ upon remand to determine whether
the EEO complaints should be amended to include two events that were not
administratively raised by Complainant with the Agency or with the AJs who
were originally assigned the complaints at issue. Second, the previous
decision erroneously considered new evidence on appeal and ordered an AJ
to take action on the new evidence. Third, the previous decision erred
in ordering the record to be supplemented with evidence that is beyond
the scope of the consolidated complaints. Fourth, the previous decision
erred in ordering the AJ to consider as background to the consolidated
complaints the February, 28, 2010 investigation since it occurred years
after the matters set forth in the complaints at issue here.
ANALYSIS AND FINDINGS
Initially, the Commission notes that the Agency does not challenge the
fundamental holding of our previous decision, that summary judgment
was not proper and the EEO complaints should be remanded back to an AJ
for a hearing on the merits. Instead, the Agency addresses the previous
decision’s ancillary concerns about avoiding fragmenting Complainant’s
EEO complaints and developing an adequate record on remand.
The fragmentation, or breaking up, of a complainant's legal claim during
EEO complaint processing has been a significant problem in the federal
sector. For complainants, fragmented processing can compromise their
ability to present an integrated and coherent claim of an unlawful
employment practice for which there is a remedy under the federal
equal employment statutes. For agencies and the Commission, fragmented
processing substantially increases case inventories and workloads when
it results in the processing of related matters as separate complaints.
Here, the Chairman’s letter (which was part of the complaint file)
indicated that Complainant had filed a third EEO complaint, alleging
new incidents of retaliation that overlapped with the time period at
issue here. This raises the possibility of fragmentation. Therefore,
upon remand, we advise the AJ to consider whether it would be appropriate
to consolidate all three EEO complaints for one hearing, pursuant
to 29 C.F.R. § 1614.606. See, e.g., Wilson v. Dep’t of Veterans
Affairs, EEOC Appeal No. 01995055 (Dec. 21, 2001) (an EEOC AJ sua sponte
consolidated six separate complaints for a hearing). And if some of the
alleged incidents raised in the Chairman’s letter were indeed raised
for the first time on appeal and are not part of the third EEO complaint,
we advise the AJ assigned to this case to give Complainant the opportunity
to request to amend his complaint to include those retaliation claims.
The AJ can then determine whether it would be appropriate to amend
the complaint. See, e.g., Torre v. Dep’t of Homeland Security, EEOC
Request No. 0520090543 (Dec. 15, 2009); Hughes v. U.S. Postal Serv.,
EEOC Appeal Nos. 01A00168, 01A01521 (Apr. 20, 2000).
Furthermore, the Chairman’s letter indicated that he received
correspondence and personnel files from the Agency addressing some of
the claims directly at issue in this case. It would seem reasonable
for the Agency, as it did for the Chairman, to provide such relevant
documentation to the AJ to supplement the existing record prior to the
hearing. And if in the end, all three EEO complaints are consolidated,
then any relevant documentation produced by the Agency for the Chairman
ought to be provided for the hearing.
After reconsidering 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 Nos. 0120092692 and 0120103369
remains the Commission’s decision. There is no further right of
administrative appeal on the decision of the Commission on this request.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Washington Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The Agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The Agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on
the complaint in accordance with 29 C.F.R. § 1614.109 and the Agency
shall issue a final action in accordance with 29 C.F.R. § 1614.110.
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 your appeal with the Commission,
until such time as the Agency issues its final decision on your complaint.
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
__10/14/11________________
Date
1 The formal complaint in the record shows that the Agency number
is DHS-USS-06-0034. The Report of Investigation also references
this same Agency number, but hearing documents, including the AJ’s
summary judgment decision, list the Agency number as DHS-USS-066-0034.
In appellate correspondence with the Commission, the Agency indicated
the Agency number was HS05USSS003363. The previous decision used
HS05USSS003363 as the Agency number. However, we elect to use the
original number assigned by the Agency itself in the formal complaint.
2 The Agency’s final order indicated that the Agency number was
HS-07-USSS-002660; however, earlier correspondence, including the
Agency’s acceptance of amended claims, indicated that the Agency number
was DHS-USS-08-0065.
3 The previous decision indicated that the raid occurred on July 17,
2007, but the actual date was July 17, 2008.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0520110480
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520110480