0520140309
10-22-2014
Marcellus M., Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
Marcellus M.,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Request No. 0520140309
Appeal No. 0120123111
Agency No. FBI201100070
DENIAL
The Agency timely requested reconsideration of the decision in Complainant v. Department of Justice, EEOC Appeal No. 0120123111 (April 26, 2014). 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(c). For the following reasons, the Agency's request for reconsideration is DENIED.
In the appellate decision, Complainant alleged that the Agency discriminated against him on the bases of sex (male), age (49), and reprisal for prior protected EEO activity when, since October 21, 2009, he was subjected to ongoing harassment. In support of his harassment claim, Complainant alleged that the following events occurred: 1. On October 21, 2009, the Special Agent in Charge ("SAC") and an Assistant Special Agent in Charge ("ASAC-1") prevented his immediate supervisor (Supervisor 1) from giving him a work performance appraisal of "Outstanding;" 2. On December 21, 2010, during a meeting of Complainant's squad, the SAC openly discouraged the filing of EEO complaints. At the same meeting, ASAC 1 acknowledged that he had previously sent an offensive text message about Complainant to the squad; 3. On January 19, 2011, the SAC reassigned Complainant to another squad; 4. On January 19, 2011, Complainant's Agency vehicle was taken from him; and 5. On January 21, 2011, the SAC did not approve awarding a Quality Step Increase (QSI) to Complainant, although his immediate supervisors supported his receiving the award.
The Agency issued a FAD which found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The previous decision affirmed in part and reversed in part the Agency's finding. The previous decision affirmed a finding of no discrimination as to allegations (1), (3), and (5). With regard to allegations (2) and (4), however, the the previous decision found that Complainant demonstrated that he was subjected to unlawful retaliation. With regard to allegation (2), the previous decision found that management's comments, announcing members of the squad had contacted EEO and following it with a threat (which was later carried out) to put an end to the aviation program, constituted a per se violation of Title VII and the Commission's regulations by interfering with Complainant's rights to pursue remedies for violations of equal employment laws. With regard to allegation (4), the previous decision found that the record was clear that management had allowed all four of the other transferred pilots to keep their assigned vehicles, but Complainant was required to turn his in. As a remedy, the previous decision remanded the issue of Complainant's entitlement to compensatory damages, and ordered, among other things, the Agency to provide EEO training for the manager involved, to consider disciplining the involved manager.
REQUEST FOR RECONSIDERATION CONTENTIONS
The Agency argues, among other things, that the alleged comments at the December 2010 meeting did not constitute interference or a per se violation. The Agency also argues that the previous decision erred in identifying the correct parties involved.
In response, Complainant contends that the Agency's arguments are a "smoke screen" to protect itself from its discrimination. Complainant asks that the Agency's request be denied as it has presented no evidence other than conclusory statements that discrimination did not occur.
ANALYSIS AND FINDINGS
After reviewing 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(c), and it is the decision of the Commission to deny the request. First, we note that the Agency presents no evidence that the Commission erred but merely disagrees with the Commission's findings. We note in this regard the Agency's contention that the management official identified as the discriminating official was not the actual correct person who engaged in the discriminating conduct. The Agency also argues that it was not coworker-1 who was involved. We do not find that this warrants reconsideration of the previous decision. Regardless of which manager made the comments, the Agency is still responsible for the conduct at issue in allegation (2). The Commission has found that any actions made by a supervisor that interferes with, the employee's EEO activity in any manner is a per se violation. The Agency is still responsible for providing EEO training to the correct individual and for considering disciplinary action against them.
Further, with regard the Agency's argument about allegation (4), the Agency fails to realize that the issue is not that Complainant was ultimately given another car but whether discriminatory animus played a role in the decision to originally take the car away in the first place. The Commission found that discriminatory animus was involved and other than disagreeing with that decision, the Agency has provided no evidence to support its reconsideration request. Accordingly, the decision in EEOC Appeal No. 0120123111 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (C0610)
The Agency is ordered to take the following remedial action:
I. Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall give Complainant a notice of his right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of his claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R, � 1614.110.
II. The Agency is directed to conduct EEO training, with a special emphasis on the anti-retaliation provisions, for the SAC, ASAC-I, and all management officials at its Detroit District facility. The Commission does not consider training to be discipline.
III. The Agency shall consider taking disciplinary action against the SAC and ASAC-1 and any other manager involved. The Agency shall report its decision. 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 reason(s) for its decision not to impose discipline.
IV. The Agency shall complete all of the above actions within 120 calendar days from the date on which the decision becomes final.
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 Detroit District 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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
___10/22/14_______________
Date
2
0520140309
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140309