0120114128
02-28-2012
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.
Appeal No. 0120114128
Agency No. HS-USSS-01312-2011
DECISION
On September 8, 2011, Complainant filed an appeal from the Agency’s
August 28, 2011 final decision that dismissed 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. 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
Whether the Agency erred in dismissing new allegations of discrimination
as discrete acts that were not timely raised, without first determining
whether they were part of Complainant’s existing hostile work
environment claim?
BACKGROUND
Complainant worked as a Canine Technician with the Secret Service
Uniformed Division. Previously, he filed two EEO complaints,1 alleging
discriminatory harassment2 from 2005 to 2008 on the bases of race (Black)
and reprisal for prior EEO activity. He also allegedly filed a third
EEO complaint, which resulted in a Congressional investigation that,
according to the recorda letter by the Chairman of the United States
House of Representatives Committee on Homeland Security, “uncovered
evidence supporting [Complainant’s] complaint . . . .” The Chairman
also raised concerns about subsequent allegations made by Complainant,
regarding events that happened to him from 2008 to 2010.3
In Blount v. Dep’t Homeland Security, EEOC Request No. 0520110480
(Oct. 14, 2011), the Commission consolidated the first two EEO complaints
and remanded them back to an EEOC Administrative Judge (AJ) for a hearing.
The decision also advised the AJ to:
• consider whether it would be appropriate to consolidate the third
EEO complaint for a single hearing; and
• give Complainant the opportunity to request to amend his complaint to
include the subsequent claims that were referenced in the Congressional
investigation but were not part of the third EEO complaint.
While Blount v. Dep’t Homeland Security, EEOC Request No. 0520110480
(Oct. 14, 2011) was pending before the Commission, Complainant submitted
an April 14, 2011 request to the Agency to amend his complaint to include
additional allegations of harassment. Specifically, he alleged that,
since 2008, the Agency had:
• wiretapped his telephone lines;
• impermissibly accessed a computerized database system, known as the
National Criminal Information Center, to run unauthorized criminal checks
on him; and
• conducted at least five unauthorized credit checks.
An Agency EEO counselor told Complainant that he could not amend his
complaint at that time because his original complaint was awaiting
hearing before an EEOC AJ. So instead, the counselor advised Complainant
to initiate EEO counselor contact and file a new formal complaint of
discrimination.
After Complainant filed a new formal complaint, the Agency issued a
final decision, dismissing the complaint for failing to timely initiate
EEO counselor contact within the 45-day limitation period. The Agency
reasoned that Complainant had a reasonable suspicion of wiretapping,
criminal checks, and credit checks at least two to three months before
April 2011. But because he did not initiate EEO counselor contact
until April 14, 2011, Complainant exceeded the 45-day limitation period.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Standard of Review
The Commission reviews de novo an agency’s final decision that is
issued without a hearing under 29 C.F.R. § 1614.110(b). 29 C.F.R. §
1614.405(a).
“The de novo standard requires that the Commission examine the
record without regard to the factual and legal determinations of the
previous decision maker. . . . The Commission will review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and . . . will issue its decision based on
the Commission’s own assessment of the record and its interpretation
of the law.” Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), at 9-15 (Nov. 9, 1999).
Timeliness of Hostile Work Environment Claim
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101
(2002), the U.S. Supreme Court ruled that the timeliness of a complaint
depends upon whether it involves a discrete act or a hostile work
environment claim.
All of the incidents that make up the same hostile work environment claim
“collectively constitute one ‘unlawful employment practice.’”
Id. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)).4 Therefore, an entire
hostile work environment claim is actionable, as long as at least one
incident that is part of the claim occurred within the filing period.5
Whether a particular incident is part of a hostile work environment claim
is a fact-specific determination. An incident may be part of a hostile
work environment even if it is also a discrete act. EEOC Compliance
Manual, “Threshold Issues,” EEOC No. 915.003, at 2-76 (July 21, 2005).
Here, Complainant sought to amend his existing (and timely) hostile work
environment claim to include new incidents of discriminatory harassment.
So before these allegations can be dismissed as discrete acts that were
not timely raised, a fact-specific determination must first be made
about whether these allegations are part of Complainant’s existing
hostile work environment claim.
Therefore, we remand this matter to the AJ assigned to hear
Complainant’s existing hostile work environment claim.6 We advise
the AJ to give Complainant the opportunity to request to amend his
hostile work environment claim to include the new alleged incidents.7
The AJ can then determine whether it would be appropriate to amend
the complaint. See, e.g., Blount v. Dep’t Homeland Security, EEOC
Request No. 0520110480 (Oct. 14, 2011).
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 the matter to the Agency for
further processing in accordance with this decision and the order below.
ORDER
The complaint (Agency No. HS-USSS-01312-2011) is remanded to the
Hearings Unit of the EEOC Washington Field Office, in particular
the EEOC Administrative Judge who has been assigned to hear Agency
Nos. DHS-USS-06-0034 and DHS-USS-08-0065. The Agency is directed to
submit a copy of the complaint files 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 files have been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaints 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
___2/28/12_______________
Date
1 Agency Nos. DHS-USS-06-0034, DHS-USS-08-0065.
2 The motions and rulings in those two matters indicate that they were
discriminatory harassment claims.
3 According to the Chairman’s letter, the allegations included the
Agency (1) ordering Complainant to take a drug test on July 16, 2008; (2)
raiding Complainant’s home in connection with a criminal investigation
about illegal steroids on July 17, 2008; (3) suspending his security
clearance and placing him on leave on July 18, 2008; (4) failing to
restate his security clearance after the U.S. attorney’s office closed
the criminal investigation and declined to prosecute Complainant; (5)
investigating 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.
4 See also id. at 115 (“[The] very nature of [hostile work environment
claims] involves repeated conduct. . . . The ‘unlawful employment
practice’ therefore cannot be said to occur on any particular day.
It occurs over a series of days or perhaps years and, in direct contrast
to discrete acts, a single act of harassment may not be actionable on its
own. . . . Such claims are based on the cumulative effect of individual
acts.”) (citations omitted).
5 Id. at 117 (“Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of determining
liability.”).
6 Agency Nos. DHS-USS-06-0034, DHS-USS-08-0065.
7 “After the complainant has requested a hearing, s/he may file a motion
with the Administrative Judge to amend the complaint to include claims
that are like or related to those raised in the pending complaint.”
EEO MD-110, at 5-9.
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0120114128
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114128