Vina D.,1 Complainant,v.Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.

Equal Employment Opportunity Commission

May 26, 2020

2019001962 (E.E.O.C. May. 26, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vina D.,1 Complainant, v. Kevin K. McAleenan, Acting Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency. Appeal No. 2019001962 Hearing No. 480-2018-00159X Agency No. HS-ICE-02698-2015 DECISION On December 11, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an EEOC Administrative Judge’s (AJ) decision, dated September 30 2018, dismissing a 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405.2 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 EEOC Regulations 29 C.F.R. § 1614.109(i) require the agency to take final action on the complaint by issuing a final order notifying the complainant whether or not the agency will fully implement the AJ's decision within forty (40) calendar days of receipt of the hearing file and decision. The complainant may appeal to the Commission within thirty (30) calendar days of receipt of the Agency's final order. If the agency has not issued its final order within forty (40) calendar days of its receipt of the hearing file and decision, the complainant may file an appeal to the Commission directly from this decision. Here, the Agency did not issue a final action. 2019001962 2 BACKGROUND During the relevant time, Complainant worked as an Immigration Enforcement Agent (IEA), for Enforcement and Removal Operations in the Agency’s Los Angeles Field Office in Laguna Niguel, California. Believing that she was subjected to harassment based on race (Asian), national origin (Chinese), and in reprisal for prior protected EEO activity, Complainant contacted an EEO Counselor. According to the Counselor’s Report, the claims raised were: (1) on December 16, 2014, Complainant was arrested by the Agency’s Office of Professional Responsibility (OPR), for alleged fraud of Administratively Uncontrollable Overtime (AUO) hours and she was not counseled prior to the arrest; and (2) on January 26, 2015, Complainant was issued a Letter of Suspension from Deputy Field Office Director, suspending her indefinitely. The EEO Counselor noted Complainant’s belief that her first-line supervisor began to build a case against her, regarding AUO hours, in reprisal for an earlier EEO complaint against him. After EEO counseling, Complainant was issued a Notice of Right to File Discrimination Complaint (hereinafter “Notice”). The Notice framed the claims as follows: 1. On January 26, 2015, Complainant was issued a Letter of Suspension from the Deputy Field Office Director, noting that she was suspended indefinitely. 2. From mid-2014 to December 2014, management placed Complainant under surveillance to build an AUO fraud case against her, culminating in her arrest by OPR on December 16, 2014. The letter accompanying the Notice instructed Complainant to “state the claim(s) giving rise to the complaint as concisely as she can, citing the nature of the action, the date of the action and any person(s) involved.” Further, Complainant “may only raise the claims or matters related to those claims that were discussed during EEO counseling.” On April 6, 2015, Complainant filed a formal complaint. Complainant described the claims in a three-page attachment. In particular, Complainant claimed that the Agency “maliciously, retaliatory[sic], selectively, and discriminatorily prosecuted [her] for the allegation of falsification of AUO hours”, a “common practice” that occurs throughout the department and is “approved by management.” Complainant alleged that she was the only employee singled out to be prosecuted and arrested. Complainant alleged further that the Agency built a case against her and subjected her to six months of “intense surveillance”, in reprisal for reporting her first-line supervisor’s misconduct. The remedies requested by Complainant included a revocation of the AUO charge filed by the Orange County District Attorney and a rescission of her suspension. 2019001962 3 Thereafter, the Agency issued a letter regarding “Notice of Acceptance of Formal Complaint”. The “STATEMENT OF ACCEPTED CLAIM” (emphasis in original) set forth the claim as follows: Whether Complainant was subjected to a hostile work environment based on race, national origin, and reprisal when on December 16, 2014 she was arrested for grand theft of AUO hours. Complainant, and her attorney, were also informed that “[i]f you believe your client’s claim has not been correctly identified, please provide to me written clarification within seven calendar days. . . .” The Agency stated that if a timely reply was not received, it would conclude that Complainant agreed with the definition set forth in the acceptance notice. An EEO investigator was assigned to the case. The issue was framed as the December 16, 2014 arrest for grand theft of AUO hours, but the allegation of a hostile work environment was also cited. The Report of Investigation (ROI) described Complainant’s belief that the Agency initiated the AUO investigation, and brought the matter to the Orange County District Attorney, in retaliation for her whistleblower and prior EEO activity. In particular, the investigator noted a prior EEO complaint wherein Complainant was the prevailing party. She was awarded reinstatement, back pay and compensatory damages for an EEOC AJ in August 20083. The questions presented to witnesses included: Who made the initial allegation which resulted in OPR investigation? Was Complainant’s use of AUO more than AUO used by her peer? Have any other employees in Complainant’s office been arrested? Have any other employees in Complainant’s office been placed on indefinite suspension? At the conclusion of the investigation, Complainant requested a hearing before an EEOC AJ. In December 2015, the parties met with the AJ to discuss two concerns: Complainant’s failure to provide an affidavit due to her pending criminal charges and Commission precedent holding that complaints regarding arrests or actions intertwined with a criminal process are a collateral attack on the EEO process. Both parties submitted briefs in the weeks that followed. In September 2017, the AJ issued an Order confirming the parties’ agreement to hold the EEO case in abeyance pending completion of Complainant’s related criminal case in the Superior Court of California, County of Orange. On December 12, 2017, the EEO case was reinstated. On September 30, 2018, the AJ issued a decision dismissing the formal complaint for failure to state a claim. The parties disputed the framing of the claim and whether the matter stated a claim. The AJ reasoned that, while Complainant argued the issue was whether she was discriminated against when the Agency decided to initiate an investigation of her regarding AUO, arrested her, and presented the matter to two prosecuting authorities, the issue was more narrowly defined as set forth in the Agency’s Notice of Acceptance. 3 Commission records reflect that Complainant filed an appeal, claiming non-compliance with respect to back-pay. See EEOC Appeal No. 0120100843 (April 20, 2012), req. for reconsid. denied, Request No. 0520120444 (Jan. 17, 2014). 2019001962 4 The accepted issue was simply whether Complainant was subjected to a hostile work environment when she was arrested for AUO theft on December 16, 2014. According to the AJ, Complainant did not object to the framing of the claim at that time, and consequently was now limited to that issue. The AJ stated that a challenge to an arrest is a collateral attack on a criminal proceeding, and dismissed the instant complaint.4 ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, the AJ concluded that the formal complaint, regarding a December 16, 2014 arrest by the Agency’s OPR, constituted an impermissible collateral attack on a criminal proceeding. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding, including the results of an internal investigation. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, or, as in this instance, an internal agency investigation. See Fisher v. Dep't of Def., EEOC Request No. 05931059 (July 15, 1994). Therefore, we agree with the AJ that the proper forum for Complainant to have raised his challenges to the OPR arrest was during the OPR investigation. It is not appropriate to use the EEO process to collaterally attack the actions taken by OPR. We find, however, that a fair reading of the formal complaint and related EEO Counseling materials, shows that Complainant is also claiming that her supervisor engaged in harassment that included causing the internal investigation by OPR. Additionally, Complainant alleges that the resulting suspension by the Deputy Field Office Director is discriminatory. As noted above, the Notice clearly framed the claims to include the suspension, as well as the six months “management placed her under surveillance to build AUO fraud case against her, culminating in her arrest . . . .” In her formal complaint, Complainant reiterates her belief that she was singled-out for a practice she describes as common-place and approved by management in reprisal for prior EEO cases against her supervisor. For the Agency to narrowly limit the claim to the December 16, 2014 arrest, based on the definition set forth in its acceptance notice, is misleading. 4 The AJ acknowledged that an allegation regarding the decision to report Complainant to the Agency’s internal affairs division would state a claim. However, the AJ relied upon the framing of the accepted claim in dismissing the case for failure to state a claim. 2019001962 5 Indeed, the subsequent investigation itself reflects a broader perception of the formal complaint. The report referenced harassment and the inquiry covered the following matters: who made the initial allegations which resulted in the OPR investigation and whether other employees had been suspended or arrested for similar AOU use. Based on a review of the record, we find that although the Agency characterizes the formal complaint as only addressing the arrest, the formal complaint also encompasses management’s allegedly discriminatory actions in instigating an investigation prior to OPR officials’ involvement and its later suspension of Complainant. See Burress v. United States Postal Service, EEOC Appeal No. 0720100002 (December 2, 2011) (In appealing AJ’s finding of discrimination, Agency argued claim that supervisor instigated OIG investigation that resulted in Complainant’s arrest and incarceration was collateral attack. Commission found bringing about investigation was another method to disparately punish and stated a claim); Elias R. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120172920 (Nov. 17, 2017)(claim that arrest by Agency police for time card fraud, and subsequent charge by State and removal from position, was found to state a claim because Complainant alleged he was treated differently than similarly situated employees also suspected of time card fraud); distinguishable from Judson G. v. Dep’t of Homeland Security (TSA), EEOC Appeal 0120172685 (October 25, 2017)(although Complainant argued he was not seeking to overturn grievance decision, but was alleging discriminatory motive in referring him to OPR, record revealed that Complainant was challenging actions from the OPR process. Dismissal for collateral attack upheld). Finally, the Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. See EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15; Carroll, EEOC Request No. 05970939. Here, Complainant alleges his supervisor took actions to induce the OPR investigation against him in reprisal for his earlier successful EEO complaint against him. The Commission has found in similar cases that such a claim states a claim of reprisal. See Terrell v. Dep’t of Homeland Security (ICE), EEOC Appeal No. 0120112370 (Jan. 19, 2012); De Vorev. Dept. of Justice, EEOC Request No. 0520100546 (January 27, 2011); see also EEOC Compliance Manual Section 8, “Retaliation,” No. 915.003 (May 20, 1998), at 8-15, footnote 42 (citing Berry v. Stevinson Chevrolet, 74 F.3d. 980, 986 (10th Cir. 1996) (instigating criminal theft and forgery charges against former employee who filed EEOC charge found retaliatory)). Therefore, we find that the AJ’s decision regarding the framing of the claim and the subsequent dismissal was improper. We agree that the arrest by OPR and subsequent actions by OPR (referral of the matter to local prosecuting authorities) fail to state a claim. However, Complainant’s allegation of harassment, which includes alleged actions by management that instigated the OPR investigation, and suspension state a justiciable claim. 2019001962 6 CONCLUSION The AJ’s decision is hereby MODIFIED in accordance with this decision and the ORDER below. The case is REMANDED to the Agency for further processing. ORDER The Agency is ordered to process the remanded claims (harassment in the form of unwarranted internal investigations, and suspension) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2019001962 7 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (T0610) 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 2019001962 8 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations May 26, 2020 Date