COMPLAINANT,
v.
JANET NAPOLITANO, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (IMMIGRATION AND CUSTOMS ENFORCEMENT), AGENCY.

Appeal No. 0120112370
Agency No. HSICE010272010

January 19, 2012

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 28, 2011, 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.

BACKGROUND

During the period at issue, Complainant (African American male) worked as the Regional Director (Supervisory Criminal Investigator) at the Agency's Federal Protective Service, Region 5 facility in Chicago, Illinois.

The instant appeal arises from the Agency's February 28, 2011 dismissal of Complainant's September 3, 2010 EEO complaint alleging race discrimination and retaliation. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.

As background, in 2007, Complainant competitively selected another African American male for the position of Deputy Regional Director. A coworker (CW1) (Caucasian female) had also applied for the position, but was not selected. Complainant has alleged the CW1 was disgruntled about her non-selection and, in 2007-2008, began filing numerous complaints against Complainant and the new Deputy Regional Director, including with the Agency's Office of Professional Responsibility (OPR), asserting a wide range of improprieties. [FN1] Prior to this, both men assert they had been given the highest appraisals and reviews. CW1's complaints generated multiple internal investigations against Complainant and the Deputy Regional Director. There is no indication in the record that any wrongdoing by Complainant was established during the investigations. However, Complainant has further alleged that the FPS Director (Caucasian male) aided and encouraged CW1 in her campaign against Complainant and the Deputy Regional Director. For example, before the investigations were completed, the Deputy Regional Director was involuntarily detailed to Boston and Complainant was told that his job was in serious jeopardy and that "things looked very bad."

On September 4, 2008, the Deputy Assistant Secretary, Immigration and Customs Enforcement (ICE), entered into a written settlement agreement with Complainant, agreeing, among other things, that the FPS Director would not be the deciding official in any investigation of Complainant, providing Complainant $36,000 in compensation for "mental anguish and suffering," conducting a new review of Complainant's September 30, 2007 performance evaluation, meeting with Complainant on a periodic basis, and paying his attorney's fees.

According to Complainant, the Deputy Assistant Secretary also made a number of oral promises to him, which included acknowledging that many of the internal investigations were tainted because the investigators had a personal relationship with the alleged complainant (CW1), dismissing the tainted investigations and not allowing them to be resurrected for any reason, as well as keeping Complainant informed of any future complaints against him. The Deputy Assistant Secretary as agreed to end the Deputy Regional Director's detail to Boston and rescind the letter prohibiting him from enter the Chicago federal building or speaking with Region 5 employees, The existence of these oral promises is confirmed in the record by a September 21, 2010 from the then-EEO Director of ICE, who details the specifics of the oral agreement as represented by Complainant.

According to Complainant, the Deputy Assistant Secretary kept her word and honored both her written and oral commitments to him. However, Complainant alleged that, in 2009, word spread to him that the FPS Director was angry over the terms of the agreement and Complainant's return to Chicago. In early 2010, both the Deputy Assistant Secretary and the ICE EEO Director left their positions.

Following their departure, on April 13, 2010, both Complainant and the Deputy Regional Director were notified by an OPR Investigator that they had been identified as subjects and witnesses against each other in two internal investigations of complaints brought by two employees (CW2 and CW3) claiming they had been passed over for assignment to a detail in retaliation for their written and oral support of CW1 in 2007 and 2008. In addition to the timing of the investigations (right after the Deputy Assistant Secretary left) Complainant alleged that the motivations for initiating the investigations were very suspicious for a number of reasons. First, he asserts that CW2 had raised the same matter in an EEO complaint the previous year which had been closed with a finding of no discrimination. Second, Complainant alleged that the FPS Director had expressly approved the selection in the detail in question, and yet he was not also being investigated.

As a result, in May 2010, Complainant sought EEO counseling himself, apparently alleging both a breach of the 2008 settlement agreement [FN2] and new acts of racial discrimination and retaliation. However, Complainant alleges that the Agency's EEO Counselor asked him to withdraw his counseling request, which he refused to do, and then would not provide him with counseling or a notice of right to file. Complainant alleges that in August 2010, his attorney was forced to write a letter protesting the situation to the Deputy Secretary of the Department of Homeland Security. This provoked a September 16, 2010 letter from the ICE Acting EEO Director, admitting that Complainant had not been provided with EEO counseling or a notice of right to file despite requesting it since May.

On September 3, 2010, Complainant filed the instant formal complaint. In a narrative attached to the formal complaint, Complainant addressed the April 13, 2010 email he received from the OPR Investigator identifying him as a witness in, and a subject of, two separate investigations into allegations of retaliation and wasteful spending. Complainant further detailed the course of the two interviews he submitted to on April 26 and 27, 2010. During the April 27, 2010, interview, the investigator informed Complainant that he was, among other things, being accused of a violation of Title VII's prohibition against retaliation. Complainant explained his concerns about these incidents in the context of the events leading up to and following the 2008 settlement agreement.

On March 15, 2011, the Agency issued a final decision. Therein, the Agency defined Complainant's formal complaint as alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (African-American) and in reprisal for prior protected activity when:
1. on April 14, 2010, Complainant learned he was the subject of two investigations by OPR;
2. on April 26, 2010, Complainant was interviewed in relation to an EEO complaint filed by an employee against the Regional Director;
3. on April 27, 2010, Complainant learned that he was the subject of an EEO complaint and was interviewed accordingly; and
4. in early May 2010, the Office of EEO, Informal Complaint Center, requested that Complainant withdraw from the informal, or pre-complaint, EEO process and thereafter improperly processed the informal complaint.

In its final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency determined that Claim (1) constituted a collateral attack upon the OPR process, and that Complainant failed to demonstrate how Claims (2)-(4) rendered him aggrieved.

The instant appeal followed.

CONTENTIONS ON APPEAL

Complainant, through his attorney, argues that the Agency's definition of the claims in his complaint was "tortured" and resulted in "misleading and sterilized sentences . . . utterly ignoring" the underlying facts.

Rather than being a collateral attack upon OPR investigations, Complainant alleged that the investigations "emanated from a series of racist attacks, fomented and perpetrated by the hostile and retaliatory culture and environment . . . dating back at least to 2008."Complainant claims that the OPR investigation was initiated out of retaliation for Complainant's prior EEO activity culminating in the settlement agreement.

Complainant further argues the Agency improperly dismissed his allegations for failure to state a claim of discriminatory harassment because he has articulated ample facts to demonstrate he was subjected to actions that sufficiently rose to the level of actionable harassment.

In its response, the Agency maintains that Complainant's allegations amount to a collateral attack upon the OPR process. The Agency contends it properly dismissed Complainant's allegations in line with "well-established case law." The Agency further argues Claims (2) and (3) were properly dismissed because they relate to the EEO process itself and Complainant was not rendered aggrieved. Moreover, the Agency argues that Claim (4) amounts to Complainant's dissatisfaction with the manner in which his complaint was processed and does not state a claim.

ANALYSIS AND FINDINGS

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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1).

The Agency based its dismissal on prior cases holding that merely conducting an internal investigation into purported misconduct does not, without more, cause injury sufficient to render the subject of the investigation aggrieved. See Heard v. Department of Justice, EEOC Appeal No. 0120092680 (August 27, 2009); Shelly v. Department of Treasury, EEOC Appeal No. 01996655 (October 27, 2000).

However, 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 action based on a retaliatory motive 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. See also, Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). While trivial harms would not satisfy this standard, the significance of the act of alleged retaliation will often depend upon the particular circumstances.

A review of the record supports Complainant's contention that the Agency, in its dismissal decision, incorrectly characterized the substance of his complaint, narrowing it to single events taken out of the underlying context of Complainant's claim of ongoing racial and retaliatory harassment that has occurred since 2007-2008 and resulted in a 2008 settlement agreement. A fair reading of the complaint reveals that, then and now, Complainant alleges that CW1 and several of her coworkers, with the support and assistance of OPR investigators and the FPS Director, have engaged in an ongoing campaign of racial and retaliatory harassment by causing unwarranted and excessive investigations (over 80 investigations) into alleged conduct by Complainant and the Deputy Regional Director. Complainant contends that this is an effort to remove him from his position in Chicago. In essence, Complainant is asserting that the internal investigations were being used by CW1 and management as weapons of harassment. Complainant has now claimed that he discovered on April 13, 2010, and thereafter, that yet another investigation had been opened in which he and the Deputy Regional Director were being accused of retaliating against friends (CW2 and CW3) of CW1 for their support of her prior complaints. Complainant alleged that the matter was being pursued because the Deputy Assistant Secretary was no longer there to prevent it and even though it had already been resolved in an earlier EEO complaint brought by CW2. Moreover, the selection for the detail (the alleged retaliatory action) had been approved by the FPS Director, yet he was not named in the complaint.

As so defined, Complainant has alleged an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In recent cases presenting similar circumstances, we have found that the initiation and processing of internal investigations for retaliatory motives can state a viable reprisal claim. See Santiago v. Department of Homeland Security, EEOC Appeal No. 0720100038 (March 2, 2011); De Vore v. Department of Justice (Federal Bureau of Prisons), EEOC Request No. 0520100546 (January 27, 2011); Murphy v. United States Postal Service, EEOC Appeal No. 0120102787 (October 26, 2010). In the context of this case, involving Complainant's prior EEO activity resulting in the 2008 settlement agreement and the Agency's investigations of numerous complaints from the same individual under alleged suspicious circumstances, we find Complainant has alleged sufficient harm to warrant investigation into his claims and further processing of his complaint.

Accordingly, the Agency's final decision dismissing Complainant's formal complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below. [FN3]

ORDER (E0610)

The Agency is ordered to process the remanded claim (ongoing racial and retaliatory harassment in the form of unwarranted and excessive internal investigations) 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 (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. Pan 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

[FN1]. Complainant alleges that CW1 filed approximately 80 complaints against him and the Deputy Regional Director.

[FN2]. Complainant has indicated in his brief on appeal that his breach claims are not at issue in this appeal.

[FN3]. The Agency shall process the complaint together with the Region 5 Director's complaint, also remanded for further processing in Bradley. Jr. v. Department of Homeland Security (Immigration and Customs Enforcement), EEOC Appeal No. 0120112143.