0720110040
02-01-2012
Derek Edgar, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.
Derek Edgar,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.
Appeal No. 0720110040
Hearing No. 480-2009-00327X
Agency No. P-2008-0396
DISMISSAL OF APPEAL
By Notice of Appeal transmitted to the Commission on September 3, 2011,
the Agency filed an appeal with this Commission requesting that the
Commission affirm its August 15, 2011 rejection of an EEOC Administrative
Judge's (AJ) finding of discrimination in violation of the Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.
For the following reasons, the Commission DISMISSES the Agency’s appeal
for untimely filing of the Notice of Appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Senior Officer Specialist at the Agency’s Metropolitan Correctional
Center facility in San Diego, California. On May 28, 2008, Complainant
filed an EEO complaint alleging that the Agency discriminated against
him on the bases of disability and reprisal for prior protected EEO
activity under Section 501 of the Rehabilitation Act of 1973 when:1
1. From February 2007 through May 29, 2008, Complainant was subjected
to harassment in the form of write-ups, unwarranted comments, public
criticism, and unusually close supervision;
2. (a) On April 25, 2008, Complainant’s request to use
compensatory time was denied;
(b) In August 2008, a second evaluation of Complainant’s performance
was completed by S1 who did not supervise Complainant during the relevant
time period; and
(c) Complainant was denied training from July 2008 to the present.
At the conclusion of the investigation, Complainant requested a hearing
and the AJ held a hearing on December 18 and 19, 2009. Thereafter,
the AJ issued her Decision, dated May 12, 2011. In her Decision the AJ
found that Complainant failed to show that he was a qualified individual
with a disability. AJ’s Decision, May 12, 2011 at 26, 27. The AJ
found that the Agency retaliated against Complainant for prior protected
EEO activity by subjecting Complainant to harassment over a year which
harassment included, among other incidents, changing Complainant’s
schedule while he was on leave, failing to notify him of the change,
and charging Complainant as Absent Without Official Leave (AWOL) when
he did not report as scheduled. Id. at 30. The AJ found the Agency
committed a per se violation of the Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. § 791 et seq., when the Agency gave
Complainant a “fully successful” performance rating and informed
Complainant that because he was on light duty, he could not receive a
higher rating. Id. at 31. Moreover, the AJ found the Agency harassed
Complainant when his leave requests were subjected to heightened
scrutiny, and when an identified Captain counseled Complainant (and
created a written memorandum) regarding his performance as a phone call
monitor. Id. The AJ found that an identified Lieutenant, attempted to
place Complainant in harm’s way in retaliation for Complainant’s
protected EEO activity by assigning Complainant to job duties that
placed Complainant in an unsafe posture with inmate contact (compelling
Complainant to refuse to do the assigned work out of concern for his
personal safety). Id. at 33. Based on a totality of the circumstances,
the AJ found that Complainant was subjected to acts of reprisal (because
he requested a reasonable accommodation for his injuries) that were
sufficiently severe and pervasive to alter the terms and conditions of
Complainant’s employment. Id. at 34, 35.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.110(a), an agency is required to take
final action on a complaint by issuing a final order within 40 days of
receipt of the hearing file and the AJ's decision. If an agency decides
not to fully implement the decision of an AJ, the agency must issue a
final order and simultaneously file an appeal with the Commission in
accordance with 29 C.F.R. § 1614.403. Id. If the agency does not
issue a final order within 40 days of receipt of the AJ’s decision,
then the AJ's decision will be become the final action of the agency. See
In the instant matter, we find that the Agency did not file its appeal
with the Commission in a timely manner. The record shows that by
facsimile transmission, the Agency filed an Appeal Brief with the
Commission’s Office of Federal Operations on September 3, 2011. The
Agency also mailed the Notice of Appeal on September 19, 2011.
A review of the AJ’s Order Entering Judgment, reveals that the
Agency was properly advised that it had 40 days after receipt of the
AJ’s Decision to file its appeal with the Commission. We note that
the AJ’s Decision provides the Agency with the correct addresses for
mailing and hand delivery, as well as the Commission’s facsimile number.
AJ’s Order Entering Judgment and Notice to the Parties, May 17, 2011
at 3, 4. We further note that by facsimile transmission dated July
6, 2011, the Agency received a page from the AJ’s Decision that the
Agency indicated was not received with the AJ’s Decision on May 26,
2011. The earliest the Agency can be considered to have filed the appeal
is on September 3, 2011, which is beyond the 40 day time limit. Thus,
the AJ’s decision has become the Agency’s final action.
The Commission notes that despite receiving the proper information
for filing its appeal from the AJ, the Agency appears to have mailed
its Final Order and Notice of Appeal to an outdated address for the
Commission on August 15, 2001. We note that the Agency’s August 15,
2011 Final Order gave Complainant the correct address to send in appeal
to the Commission. The Commission has previously held that when provided
with the proper address, filing at the wrong address does not constitute a
proper filing. See Pacheco v. United States Postal Service, EEOC Request
No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong
address despite receipt of proper instructions). We find the Agency has
not offered adequate justification for an extension of the applicable
time limit for filing its appeal. Complainant did not file any appeal.
CONCLUSION
The Agency’s appeal is DISMISSED for untimely filing of the Notice
of Appeal. The Agency shall implement the remedies set forth by the AJ
as slightly modified herein.
ORDER
The Agency shall take the following remedial actions:
1. Within 30 days of the date this decision becomes final, the
Agency shall pay Complainant non-pecuniary, compensatory damages in the
amount of $50,000.
2. Within 30 days of the date this decision becomes final, the
Agency shall restore to Complainant any sick leave and annual leave used
as the result of the unlawful discriminatory harassment but unrelated to
Complainant’s claim filed with the Office of Workers’ Compensation
Programs (OWCP). Complainant shall cooperate with the Agency and
provide it with information respecting what leave he took as a result
of harassment and not Complainant’s OWCP claim.
3. Within 30 days of the date this decision becomes final, the Agency
shall remove the Absent Without Official Leave (AWOL) status notations
from Complainant’s records maintained by the Agency for July 15, 2007,
and pay to Complainant any back-pay owing to him as the result of being
marked as AWOL.
4. Within 180 days of the date this decision becomes final, the
Agency shall provide a minimum of 40 hours of EEO training for the
responsible management officials employed by the Agency. Such training
shall include but not be limited to EEO awareness, with an emphasis
on identifying and eliminating disability and reprisal harassment.
Such training shall be separate from and in addition to the Agency’s
Annual Refresher Training.
5. The Agency shall ensure that the responsible management
officials, identified in Complainant’s complaint as the Captain,
GS-13 at the Metropolitan Correctional Center, San Diego, California
(at the time of the events described in Complainant’s complaint) has no
further opportunity to harass or intimidate Complainant by, at a minimum,
ensuring that other supervisors monitor the official’s actions towards
Complainant or by removing Complainant from the identified Captain’s
supervision.
7. The Agency shall consider appropriate disciplinary action
against all responsible management officials. If the Agency decides to
take disciplinary action, it shall identify the action taken. If the
Agency decides not to take disciplinary action, it shall set forth the
reasons(s) for its decision not to impose discipline. If the responsible
management officials have left the Agency's employment, then the Agency
shall furnish documentation of all departures.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Metropolitan Correctional Center San
Diego, California facility copies of the attached notice. Copies of the
notice, after being signed by the Agency's duly authorized representative,
shall be posted by the Agency within thirty (30) calendar days of the
date this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The Agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid
by the Agency. The attorney shall submit a verified statement of fees
to the Agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The Agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. § 1614.501.
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
February 1, 2012
__________________
Date
1 Claim (1) is based on disability and reprisal. Claim (2) is based on
reprisal alone.
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0720110040
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
7
0720110040