0120112197
05-10-2012
Jeffrey Walker, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Jeffrey Walker,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120112197
Hearing No. 420-2010-00198X
Agency No. ATL-10-0254-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated February 14, 2011, implementing a dismissal of the formal complaint 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.
BACKGROUND
During the period at issue, Complainant worked as a Service Representative Trainee at the Agency's facility in Dothan, Alabama. Complainant filed a formal EEO complaint.
By letter dated March 22, 2010, the Agency accepted the following claims:
Complainant claimed that "based on conduct not affecting performance":
1. He was not properly trained by his mentor, e.g., the mentor was always "snapping" at him and very argumentative when Complainant had work-related inquiries. Subsequently, Complainant was placed on a Training Assistance Plan, effective January 11, 2010.
2. He was terminated from his GS-0962-07 Service Representative Trainee position via the Veteran's Recruitment Appointment, effective March 5, 2010.
3. Beginning December 18, 2009, he was subjected to continuous and ongoing harassment (nonsexual) and a hostile work environment when:
a) his Supervisor talked to him in a condescending and provoking matter regarding work issues;
b) he approached his Supervisor a second time about receiving another mentor, he responded angrily, "this has never taken place before you joined the organization;"
c) he was labeled as not getting along with people, as well as having respect for no one; and
d) his supervisor approached him on three different occasions with a counseling performance plan and requested that he read, date, and sign the plan.
In its acceptance letter, the Agency further provided "[p]rocessing of discrimination complaints based on conduct not affecting performance discrimination differs from the above-described complaint process in that SSA's decision in the matter is final. There is no right to a hearing with an EEOC AJ prior to SSA's decision, that there are no appeal rights to EEOC's Office of Federal Operations..."
The Agency further provided, in this letter, that Complainant's reprisal claim was not within the purview of Title VII. Specifically, the Agency stated "[i]n the EEO Counseling Report, you state that you are alleging reprisal because you refused to sign a counseling performance plan presented to you by the Operations Supervisor and for informing Management on numerous occasions about not being properly trained by your mentor." The Agency further stated that based on the foregoing, it would not pursue the basis of reprisal.1
In a final decision dated, September 1, 2010, the Agency found that Complainant was not discriminated against regarding conduct that does not adversely affect performance. The agency noted that Complainant did not have appeal rights to the Commission with respect to this matter. However, the Agency further provided that Complainant had a right to request a hearing before the EEOC or a final decision without a hearing regarding the remaining claim of reprisal discrimination.
Complainant subsequently requested a hearing before an EEOC AJ.
In an Order of Dismissal dated January 14, 2011, the AJ noted that this matter came before him "on the Agency's Motion to Dismiss Complainant's Conduct Affecting Performance Claim, Supplemental Motion to Dismiss, and Motion to Dismiss Complainant's Hearing Request.2 The AJ granted the Agency's motions. The AJ found that issue (A) that Complainant was harassed and discriminated against based on "conduct not affecting performance" does not allege any prohibited bases under the statutes enforced by the EEOC. The AJ noted that the Agency contends that issue (B), the reprisal claim Complainant raised in pre-complaint counseling, was not within the purview of Title VII and Complainant could have raised this dismissal with the AJ but that Complainant failed to do so. Regarding issue (C), the AJ, in his Order, stated: "[t]he Agency also contends that during the investigation of Complainant's claims, he alleged in a supplemental affidavit that the Agency terminated him for his trainee position in retaliation for his EEO activity. The Agency did not issue any letter or notices accepting, acknowledging or dismissing the new claim of reprisal. Regarding issue (C), Complainant could have requested that he be allowed to amend the instant complaint to include the above claim, but he failed to do so."
The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through his attorney, asserts that the AJ's dismissal of his termination claim based on protected EEO activity was improper. Complainant asserts that on the same day he was notified of his termination, February 26, 2010, he contacted the acting supervisor for OCREO Intake and Investigation (AS) and asked that his termination claim based on protected EEO activity be added to his pending complaint. Complainant asserts AS told him this claim was included and that he did not need to do anything else.
Complainant further asserts that he tried to confirm the claim was in the case in June 2010, and that AS informed him via email that "an amendment is not required." In addition, Complainant states that AS instructed him to "inform the investigator that you would like to add reprisal/retaliation as a basis to claim 2 in the current pending complaint. Complainant asserts that he did raise this matter to the Investigator who went on to investigate the claim.
The Agency requests that we affirm its final order implementing the AJ's Order of Dismissal. The Agency notes that Complainant was advised in its March 22, 2010 letter to notify the Associate Commissioner of OCREO, his assigned EEO Specialist and the EEO Investigator of any amendment to the complaint to add incidents like or related to the pre-existing claims. The Agency asserts that Complainant failed to notify the Associate Commissioner regarding the amendment.
The Agency further asserts that even assuming arguendo that Complainant contacted the necessary individuals regarding the amendment, this claim, termination based on protected EEO activity, is not like or related to the claims raised at pre-complaint counseling.
ANALYSIS AND FINDINGS
As an initial matter, the only claim to which Complainant makes reference on appeal is his termination claim based on reprisal for protected EEO activity. Therefore, we will only address this claim herein.
The AJ improperly dismissed Complainant's termination claim with respect to the basis of reprisal for protected activity. EEOC Regulation 29 C.F.R. � 1614.106(d) (1999) provides that "a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claim like or related to those raised in the complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-11) Chap, 5, Sect. III(B) provides that if a complainant raises a new claim with an investigator, the investigator must instruct the Complainant to submit a letter to the Agency's EEO Director or Complaints Manager (or designee) describing the new claim and stating that she wishes to amend her complaint. Further, once the Agency is aware that a Complainant is raising a new like or related claim, the Agency is required to amend the complaint and acknowledge the amendment in writing. See EEO MD -110, Chap. 5, Sect. III(B)(2); see also 29 C.F.R. � 1614.106(e). The Agency must also notify the EEO investigator to include the new allegations in the investigation. EEO MD-110, Chap. 5, Sect. III(B)(2).
The Agency failed to amend Complainant's complaint to include the claim at issue in accordance with our regulations and management directive. In the instant matter, the record contains a copy of an email from Complainant to AS dated June 2, 2010. Therein, Complainant states in pertinent part, that "I wish to amend my claim to add that my termination was based on retaliation/reprisal after filing an [EEO] complaint on the management staff..." Via email dated June 29, 2010, AS responded "regarding your request to amend discrimination complaint...to include reprisal/retaliation as a basis to claim 2. You have the option to add basis/bases to your complaint at any time, an amendment is not required. Please inform the investigator that you would like to add reprisal/retaliation as a basis to claim 2 to the current pending complaint."
The record further reflects that Complainant in his affidavit and his supplemental affidavit raised the claim at issue. Based on the foregoing, we find that in accordance with MD-110, AS and/or the Investigator should have told Complainant to submit his request in writing to the Agency's EEO Director or Complaints Manager (or designee). While the Agency asserts that Complainant's termination claim in reprisal for protected activity was not like or related to Complainant's other claims, we disagree. Complainant, in his affidavit dated June 11, 2010, asserted in pertinent part that "I believe I was terminated in retaliation for filing an EEO complaint on the management staff....Once I filed the EEO complaint, things became worse and culminated in my termination." We find that the instant claim at issue (termination due to prior protected EEO activity), grew out of Complainant's initial claims.3
CONCLUSION
Accordingly, we REVERSE the Agency's final order implementing the AJ's dismissal (regarding Complainant's termination claim based on prior protected EEO activity) and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Birmingham District Office 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. The AJ shall hold a hearing and 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.
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
May 10, 2012
Date
1 We note this statement differs from the Agency's final decision dated September 1, 2010, as discussed below.
2 The Commission notes that the case file the Agency forwarded to the Commission does not contain these three Agency motions.
3 EEO MD-110, Chapter 5, III, B, provides an example (Example 6) of a similar situation:
During the investigation into her claim that the agency is discriminating against her in the terms and conditions of her employment because her supervisor denied her developmental assignments that could lead to upward mobility in the agency, the complainant informs the investigator that her supervisor just issued her a letter of warning for attendance problems. The complainant asserts that the supervisor took this action in retaliation for her complaint about the denial of development assignments. This new claim of retaliation is related to the pending claim because it grew out of the investigation into that claim. The agency should amend the original complaint to include this subsequent, but related, claim.
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0120112197
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112197