0120141656
10-16-2014
Chief Executive Officer (CEO), DekaTron Corporation, Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency.
Chief Executive Officer (CEO), DekaTron Corporation,
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120141656
DECISION
On March 18, 2014, Complainant filed a timely appeal with the Equal Employment Opportunity Commission from an Agency letter dated February 19, 2014, informing him that he was not entitled to a final Agency decision (FAD) under the Agency's harassment procedures. Complainant brought a case against the Agency, on behalf of his employees, alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was CEO of a corporation with employees who served the Agency. While the record is sparse, there is a reference therein to employees working with or near the Information Technology (IT) Manager, Office of the Assistant Secretary for Administration and Management (OASAM), Departmental Budget Center (DBC).
The Agency's Equal Employment Opportunity (EEO) Program Manager wrote that in March 2013, the Agency received a complaint by Complainant on behalf of his employees claiming that the IT Project Manager, an Agency employee, subjected the employees to racist, sexist, and humiliating remarks, including referring to an employee as "Squidward", imitating Asian accents, stereotyping Asian personnel, and inquiring about "carpet kissing" policies for Islamic personnel, which constituted discrimination based on race (Asian and African-American), religion (Islamic), and disability.
In August 2013, the EEO Program Manager wrote Complainant that pursuant to its harassment procedures the matter was investigated and based on this the Agency determined that the IT Project Manager's behavior did not comport with its harassment policy. She wrote that the Agency took steps to prevent reoccurrences, and the IT Project Manager was replaced as the Contracting Officer Representative (COR) on the contract between the Agency and Complainant's corporation. The EEO Program Manager continued that Complainant's additional complaint of retaliation by Agency procurement personnel would not be accepted for investigation under the Agency's harassment procedures because it concerned the language, performance, and delivery under the contract, and occurred before the allegations of harassment were reported to the EEO office.
In August 2013, Complainant replied to the EEO Program Manager that while the IT Project Manager was replaced by a new COR, he was the boss of the successor COR, and he still jeopardized the performance of the contract by doing things such as unjustifiably partially paying invoices. Complainant wrote that his corporation had disputes on the language, performance, and delivery under the contract because the IT Project Manager orchestrated unnecessary confusion, and his racist and sexist harassing conduct was aimed at the corporation itself, a minority owned company, and this was the reason there were disputes on the language, performance, and delivery under the contract. Complainant wrote that the IT Project Manager directed the delay of contract performance for an unspecified reason, and then used this discriminatory conduct to penalize the corporation by only paying part of its subsequent invoices, financially squeezing the corporation, a small business. Complainant added that another incident of retaliation was the Agency gave it a Notice of Cure. He wrote he would take his matter to the EEOC, and wanted to know what corrective action the Agency would take.
In September 2013, the EEO Program Manager responded that the matter was now closed. Complainant later requested a FAD. On February 19, 2014, the Agency replied to Complainant that there was no provision under its harassment procedures for issuing a FAD. It advised that employees who file a complaint under its harassment procedures are not precluded from pursuing their rights under the EEO process, and gave Complainant contact information if he wished to inquire about or pursue the EEO complaint process.
On appeal Complainant wrote that in February 2013, employees of his corporation went to the Agency's EEO office to complain of racial, gender, and religious discrimination, and the Agency converted the corporation's complaint into one that alleged that the Agency violated its own internal harassment policies rather than also processing it under the EEO complaint process.
In response to Complainant's appeal, the Agency wrote that it Civil Rights Center has no record of Complainant initiating informal counseling or filing a formal EEO complaint. Almost all the documents in the record were submitted by Complainant with his appeal.
ANALYSIS AND FINDINGS
Our regulations provide that claims by employees and applicants for employment are covered by 29 C.F.R. Part 1614. See 29 C.F.R. � 1614.103. While a corporation is a legal entity and not an employee, Complainant contends that employees thereof initiated EEO counseling in February 2013, and he contacted the Agency's EEO office on behalf of corporation employees who serve the Agency.
As Complainant wishes to pursue an EEO case, the Agency must assign him an EEO counselor and process the matter pursuant to 29 C.F.R. Part 1614. This must include advising Complainant on the EEO process and giving him the right to file a formal complaint. If Complainant files a formal complaint, regardless of how it is styled, the Agency must make a determination on whether to accept the complaint for investigation in whole or part, or dismiss the complaint.
Accordingly, Complainant's claims of discrimination are remanded in accordance with the order below.
ORDER
The Agency is ordered to assign Complainant an EEO counselor and notify him and his attorney of this within 15 calendar days of the date this decision becomes final. It must process Complainant's case in accordance with 29 C.F.R. � 1614.105 et seq.1
Documentation of the notification 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
October 16, 2014
__________________
Date
1 If the employees of the corporation expressed or express a wish to pursue the EEO process in their own right, the Agency should also counsel them on the EEO process. If the Agency has concerns about the timeliness of EEO counseling, it should note Complainant's contention that employees initiated EEO counseling in February 2013, and the contention that he also previously did so. Further, under common law, an Agency can be considered an employer of contractors (meaning people) who serve it if the Agency has sufficient control over their positions. See Ma v. Department of Health and Human Services, EEOC Appeal Nos. 01962389 & 01962390 (May 29, 1998); Baker v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006).
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0120141656
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120141656