Barrington Myvett,
Complainant,

v. 

Adrienne Poteat,
Acting Director,
Court Services and Offender Supervision Agency,
Agency.

Appeal No. 0120103671

 Hearing No. 570-2007-00846X
 
Agency No. 07-003

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's
appeal from the Agency's August 11, 2010 final order concerning an equal
employment opportunity (EEO) complaint claiming 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 was employed as a Drug Testing
Technician, GS-102-06, at the Agency's Washington D.C. facility.

On December 28, 2006, Complainant filed the instant formal complaint.
Therein, Complainant claimed that he was subjected to harassment and a
hostile work environment on the bases of sex (male) and in reprisal for
prior protected activity when:  

1. between July 25 and 27, 2006, the Branch Chief (BC) made derogatory,
threatening and intimidating statements.  Specifically, BC allegedly
sexually harassed Complainant when he instructed him to escort him
to the restroom door while he used it.  Further, Complainant alleged
that BC accused him of mumbling and "play games" with him.  Moreover,
Complainant alleged that BC referred to him as "Chucky" and stated
"You're going to get yours;"

2. on November 9, 2006, the EEO Counselor denied him access to his EEO
file;

3. on January 27, 2007, when: (a) he was pressured to write an incident
report on the same day for an event that happened a month ago; (b) on
January 4, 2007, he was given a proposed suspension and prevented from
using eight hours of administrative leave to prepare his statement; and
(c) on January 4, 2007, he was placed on Absence Without Leave (AWOL)
for going to the doctor even though he provided a doctor's note;

4. on February 14, 2007, he experienced further retaliation (no
documentation or further information was provided);

5. on March 23, 2007, he was retaliated against when he was placed on
administrative leave based on the Agency's concern about his ability to
perform in a safe manner;

6. on January 18, 2008, he was issued a Notice of Proposed Removal; and

7. in March 2006, he was suspended because it was alleged that he had
sexually harassed a female employee.	  

Following the investigation, Complainant requested a hearing before an
EEOC Administrative Judge (AJ).  The record reflects that on August 31,
2007, the AJ issued a document titled "Order Directing the Agency to
Produce Complaint File."  In his Order, the AJ directed the Agency
to provide him a copy of the complete file, including the report of
investigation (ROI), within fifteen (15) days from receipt of this Order.
The Order placed the Agency on notice that it could be sanctioned if it
did not  provide the requested materials within fifteen (15) days from
the date of the Order.	

On September 24, 2007, the Agency forwarded an incomplete complaint file
which did not contain a copy of the ROI.  Consequently, the AJ issued
an Order to Complete Investigation dated September 26, 2007, which
gave the Agency 45 days from its receipt of the Order to complete the
investigation.	On December 3, 2007, nearly 70 days after the September
26, 2007 Order, the Agency requested an extension of time to complete
the investigation.  The AJ did not issue a ruling on that request.
On January 14, 2008, the Agency submitted a letter stating that, after
it submitted the extension request, it determined that most of the
issues in the instant complaint should be dismissed.  In that regard,
the Agency issued a final Agency decision (FAD) on January 8, 2008 in
which it dismissed most of the instant complaint and advised that the
new issues Complainant had raised for purposes of amendment in March
2007 should be referred for EEO counseling.

On January 15, 2008, the AJ issued an Order to Rescind Final Agency
Decision insofar as an Agency, after a Complainant has properly requested
a hearing, is precluded from dismissing a complaint.  By letter dated
January 28, 2008, the Agency rescinded its January 8, 2008 FAD and
accepted all of the dismissed claims for processing.  The Agency did not
thereafter submit an ROI , and on July 17, 2008, the AJ issued an Order
to Show Cause requiring the Agency to show cause why it had failed to
comply with both his August 31, 2007 and September 26, 2007 Orders and
produce a completed ROI.  

On July 24, 2008, the Agency submitted a copy of the ROI, and on August
1, 2008, it provided a response to the AJ's July 17, 2008 Order to Show
Cause.	In its response, the Agency attributed the delay in producing
the ROI for three reasons.  First, the Agency cited Complainant's
conduct, nothing that his "various efforts to amend his complaint and
his contumacious conduct in dealing with the Investigator substantially
frustrated the processing of his complaint."  The Agency stated that
the second reason for its delay is that Complainant refused to return
the investigator's calls and "when he ultimately communicated with the
Investigator, he indicated that he would not allow the investigation to go
forward."  Finally, the Agency stated that its EEO Office "had one vacancy
and underwent a transition in its leadership.  Procuring the services of
a contract Investigator also added time to the processing of this case."

On June 30, 2010, the AJ issued a decision.  Therein, the AJ noted
although Complainant filed the instant complaint on December 28, 2006,
it was not until July 24, 2008 ( 574 days later) that the Agency produced
a copy of the requisite ROI.  The AJ noted that it was undisputed that
the Agency did not submit an ROI in response to either his August 31,
2007 or September 26, 2007 Orders, and failed to comply with both Orders.
The AJ stated that in his July 17, 2008 Order to Show Cause, he found
the Agency's reasons set forth to be both vague and unpersuasive.
Specifically, the AJ stated although the Agency cited Complainant's
alleged "contumacious conduct," the only cited misconduct involved
Complainant's interactions or lack thereof, with the investigator.  The AJ
noted that a review of the record reflects that the Agency did not begin
its investigation into Complainant's allegations until March 18, 2008,
nearly 450 days after Complainant filed the instant complaint.	

Further, the AJ found that the Agency did not show good cause for the
delay in the production of the ROI.  The AJ stated as discussed, his July
17, 2008 Order to Show Cause stated that the failure to show good cause
would result in appropriate sanctions.	Therefore, the AJ found that
the imposition of sanctions was warranted.  The AJ further found that
the Agency's delay, for which it had not shown good cause, constituted
an egregious abuse of this process.  Accordingly, the AJ found that,
as a sanction, entrance of default judgment in the Complainant's favor
was appropriate.   

The AJ found, however,	that Complainant was only entitled to relief
for some of his claims because the record did not contain sufficient
evidence to satisfy the basic elements of a claim of hostile environment
harassment.  Specifically, the AJ found that claims 2, 4, 5 and 6 did not
state actionable claims of discrimination.  The AJ stated that in regard
to claim 2, it involved an action which occurred within the context of the
EEO process and, as such, was not actionable in this forum.  Regarding
claim 4, the AJ found there was no action specifically identified.
Regarding claim 5, the AJ stated that the Commission has consistently
held that placement on administrative leave does not state an actionable
claim of discrimination.  Finally, the AJ found that in regard to claim 6,
it constituted a proposed action.  The AJ noted although the proposed
action in question (Complainant's removal) was ultimately effected,
he determined that the Commission does not have jurisdiction over the
removal.1  The AJ found, however, that Complainant is potentially entitled
to relief with respect to the disparate treatment aspects of claim 3 as
well as the March 2006 suspension that is referenced in claim 7.

The AJ determined that Complainant was entitled to be reimbursed for the
compensation he lost as a result of both the suspension in March 2006,
and the subsequent two-week suspension he received in February 2007.
The AJ also found that Complainant was entitled to be reimbursed for
whatever compensation he lost as a result of being placed on AWOL on
January 4, 2007.  The AJ determined that the Agency would be ordered to
expunge any records pertaining to the two suspensions and the AWOL that
are in Complainant's official personnel file.

Further, the AJ noted that Complainant filed a response to his January
15, 2009 Order concerning monetary relief.   The AJ noted that in
his response, Complainant requested various types of monetary relief.
Specifically, Complainant requested $31,037 for lost wages between the
date of his removal and the date he filed his response and $134,493 in
front pay from the present until three years into the future.  The AJ
determined that because Complainant's removal was not before him,
Complainant was not entitled to the requested relief.  

The AJ further noted that Complainant requested $100,000.00 in legal
fees in which he could reasonably incur in an attempt to purge "any and
all criminal records" which are not in the Agency's possession and which
were caused by the Agency's actions.  The AJ determined that not only
the $100,000.00 legal fee amount speculative, he found it unrelated to
the accepted claims.  

The AJ also noted that Complainant requested $2,658.33 for which he
identified as what he would have had received had he received a step
increase on September 7, 2006, along with reimbursement for $157.56
that was withdrawn from his salary in December 2007.  The AJ noted that
Complainant made a similar request for reimbursement in the amount of
$91.50 that was withdrawn in January 2008.  Again, the AJ found that
the requested relief was not related to the accepted issues and that
Complainant was not entitled to the requested relief.  

With respect to pecuniary damages, the AJ noted that Complainant requested
reimbursement in the amount of $1,185.00 be paid to his physician between
June 2006 and March 2008.  Complainant stated that "these charges were
not covered by [the] Agency's insurance and these medical services
were necessary to treat the illness caused by job related stress and
harassment."  However, the AJ noted that Complainant did not identify
to what types of treatments these medical charges pertained or provide
any specifics demonstrating a casual connection between the Agency's
alleged discriminatory action and the treatments.  Consequently, the AJ
determined that Complainant was not entitled to reimbursement for any
of the amount in question.

The AJ noted that Complainant also requested reimbursement in the amount
of $1,724.27 for two weeks of sick leave he used in January 2007 due to
job-related stress.  In support of his assertions, Complainant submitted
a note from an unidentified doctor with the Washington Medical Group
dated January 16, 2007, which states "due to job related stress the
above patient is incapacitated and unable to perform work for two weeks."
The AJ found the note too vague to establish an entitlement to damages
for reimbursement for the amount in question.

Regarding the non-pecuniary damages, the AJ determined that Complainant
did not request compensatory damages.  The AJ found although Complainant
cited certain specific examples of harm experience (i.e. loss of sleep,
weight loss, chest pains, embarrassment from having to file for food
stamps, headaches, problems concentrating, etc.), he does not specifically
attribute any of this harm to the discriminatory actions at issue.
Therefore, the AJ determined that Complainant was not entitled to
non-pecuniary compensatory damages.

Moreover, the AJ determined that Complainant was entitled to be reimbursed
for the compensation he lost as a result of both the suspension in March
2006 and the subsequent two-week suspension he received in February 2007.
The AJ also found that Complainant was entitled to be reimbursed for
whatever compensation he lost as a result of being placed on AWOL on
January 4, 2007.  The AJ determined that the Agency would be ordered to
expunge any records pertaining to the two suspensions and the AWOL that
are in Complainant's official personnel file.

The Agency issued a final order dated August 11, 2010, implementing
the AJ's decision.  Therein, the Agency stated that in consistent
with the AJ's order, it has determined that Complainant is entitled to
$3,962.00 for the loss of compensation and benefits due to his serving
the suspension and AWOL charges.

On appeal, Complainant argues that the AJ erred in finding that
the Commission does not have jurisdiction over his removal action.
Specifically, Complainant argues that "the issue of removal (as proposed)
was clearly enmeshed in the EEO process even prior to requesting the
Commission's handling of the case.  Therefore, it goes against the
judicial economy to rather belatedly dismiss removal action while having
gone so far as to render a Decision against Agency."  

In response, the Agency requests that the Commission affirm its final
order and reject Complainant's request to consider the removal action
as a basis for damages.  The Agency further argues that the AJ properly
denied Complainant's request to amend the instant complaint by adding
the removal action because Complainant was fully aware of his rights to
appeal the removal action.  




ANALYSIS AND FINDINGS

The Commission discerns no basis to disturb the AJ's findings.	We find
that the findings of facts are supported by substantial evidence, and
that the AJ correctly applied the appropriate regulations, policies
and law.  Despite Complainant's arguments that the AJ erred in finding
that the Commission does not have jurisdiction over his removal action,
we find that the record supports the AJ's determination that the Agency
did not show good cause for the delay in the production of the ROI and
that Complainant was only entitled to relief for some of his claims
because the record did not contain sufficient evidence to satisfy the
basic elements of a claim of hostile environment harassment. Moreover,
we further find that given the specific facts in this case, the AJ's
remedial award is appropriate.	

With respect to the remedial orders, we find that the AJ properly
directed the Agency to compensate Complainant for the compensation and
other benefits he lost as a result of both the suspension he served in
March 2006 and the subsequent two-week suspension he served in February
2007; and compensate him for whatever compensation and benefits he lost
as a result of being placed on AWOL on January 4, 2007.  Moreover, we
find that the AJ properly directed the Agency to expunge any records
pertaining to the March 2006 and February 2007 suspensions and the
January 2007 AWOL from Complainant's official personnel file.	 

Accordingly, we AFFIRM the Agency's final order concerning the relief
ordered by the AJ, and REMAND this matter to the Agency to take remedial
action in accordance with this decision and the ORDER below.

ORDER 

The Agency, to the extent that it has not already done so, is ordered
to take the following remedial action:

1. Within sixty (60) calendar days of the date this decision becomes
final, the Agency shall compensate Complainant for the compensation and
other benefits he lost as the result of both the suspension he served in
March 2006 and the subsequent two-week suspension he served in February
2007.  The Agency is also ordered to compensate Complainant for whatever
compensation and benefits he lost as a result of being placed on AWOL
on January 4, 2007.

2. Within sixty (60) calendar days of the date this decision becomes
final, the Agency shall expunge any records pertaining to the March 2006
and February 2007 suspensions and the January 2007 AWOL that are in the
Complainant's official personnel file.

3. The Agency shall post a notice in accordance with the paragraph below.

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.

ATTORNEY'S FEES (H0900)

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.

POSTING ORDER (G0900)

The Agency is ordered to post at its Washington D.C. 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.

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), 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 8, 2011
__________________
Date







 


1 The AJ noted that Complainant filed a motion to amend the instant
complaint to add his removal as a claim.  However, the AJ denied the
motion because it was apparent that the removal constituted a mixed case
complaint (stemming from an action that can be appealed to the Merit
Systems Protection Board (MSPB)).  The AJ noted that the Decision on
Proposed Removal stated that Complainant had the right to appeal the
removal to the MSPB.
??

??

??

??

2
0120103671





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




2
0120103671