Barrington Myvett, Complainant, v. Adrienne Poteat, Acting Director, Court Services and Offender Supervision Agency, Agency. Request No. 0520110349 Appeal No. 0120103671 Hearing No. 570-2007-00846X Agency No. 07-003 DENIAL Both Complainant and the Agency timely requested reconsideration of the decision in Barrington Myvett v. Court Services and Offender Supervision Agency, EEOC Appeal No. 0120103671 (February 8, 2011). 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(b). BACKGROUND Complainant filed an EEO complaint against the Agency in December 2006 in which he claimed that the Agency had discriminated against him on the bases of sex and in reprisal for prior protected EEO activity when he was subjected to harassment and a hostile work environment. Among the incidents listed by Complainant as part of his harassment claim were: his supervisor made derogatory, threatening, and intimidating statements and subjected him to sexual harassment; in November 2006, he was denied access to his EEO file; he was placed in Absent Without Leave (AWOL) status for January 4, 2007; he was placed on administrative leave on March 23, 2007; on January 18, 2008, he was issued a Notice of Proposed Removal; and in March 2006, he was suspended for allegedly sexually harassing another Agency employee. Complainant requested a hearing with an Administrative Judge (AJ). Following the Agency’s failure to show good cause as to why it had not complied with his two Orders to produce the Report of Investigation, the AJ issued a decision in which he sanctioned the Agency for its actions in the EEO complaint process, and entered a default judgment in favor of Complainant. In his decision awarding relief to Complainant, the AJ found that Complainant had only established an entitlement to relief on his claims that he was discriminatorily suspended in March 2006 and that he was suspended for two weeks in February 2007. The AJ also awarded relief for compensation lost when Complainant was put on AWOL on January 4, 2007. The AJ did not award any non-pecuniary compensatory damages. The AJ specifically denied Complainant’s request to amend his complaint to include his removal from the Agency on May 16, 2008, finding that it was appealable to the Merit Systems Protection Board (MSPB), and therefore not under the jurisdiction of the Commission. The previous decision affirmed the AJ’s decision and the Agency’s implementation of the decision. It denied Complainant’s request on appeal to reverse the AJ’s decision denying his motion to amend the complaint to include his removal from the Agency. It also affirmed the remedies awarded by the AJ and ordered the Agency to implement those remedial actions. ARGUMENTS ON RECONSIDERATION In his request for reconsideration dated March 10, 2011, Complainant argued that the previous decision involved a clearly erroneous interpretation of material fact or law in that it affirmed the AJ’s decision not to amend his complaint to include his removal claim, it did not award him the appropriate amount of damages, and it did not grant his motion for sanctions against the Agency. His motion for sanctions was based on his claim that he had attempted to amend his complaint with a number of other issues in 2007, but that the Agency did not properly process these claims, and his claim that the issues have not been resolved. Complainant argued that his removal claim had become enmeshed in the EEO process and that the Commission should assert jurisdiction over it on that basis. In the Agency’s March 14, 2011 request for reconsideration, the Agency confined its request for reconsideration to the issue of the language specified in the Posting Order. It argued that the language contained in the Posting Order, which the previous decision ordered be posted at the Agency’s Washington, D.C. facility, was not an accurate reflection of the events that occurred in the processing of Complainant’s complaint or of the default finding made by the AJ. It requested that the Commission modify the Posting Order to eliminate one paragraph and alter a sentence to reflect that it was not a violation of Title VII of the Civil Rights Act of 1964 (Title VII) which was found, but rather a failure to properly investigate a complaint. The Agency also opposed Complainant’s request for reconsideration, and argued that the issues Complainant raised had previously been brought before the AJ and argued in Complainant’s initial appeal, and had been adequately adjudicated. DETERMINATION We find that the Complainant’s request for reconsideration should be denied. Complainant raises arguments which he had previously raised on appeal and before the AJ. Complainant also argued that the amount of damages awarded to him should be increased; however, the requested increase was related to the removal action, and other events, which were considered by the AJ in his decision and rejected. We are not persuaded by Complainant’s argument that his removal claim has become enmeshed in the EEO process and should have been adjudicated in conjunction with his EEO complaint. In cases in which we have found that a complainant’s mixed-case claim has become enmeshed with non-mixed-case claims, the mixed-case claim has often been heard before an AJ, or been the subject of an appeal when an agency has not given proper appeal rights to the MSPB. See Hose v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120093173 (Mar. 25, 2011) (agency had not advised complainant that her constructive discharge claim could be appealed to the MSPB); Aguillard v. Dep’t of Justice, EEOC Appeal No. 0720040056 (Nov. 21, 2006) (agency provided complainant with right to request a hearing before an EEOC AJ instead of right to appeal to MSPB); Cullors v. Dep’t of Defense, EEOC Appeal No. 01A41560 (June 27, 2006) (agency improperly gave appeal rights to Commission rather than MSPB, but Commission assumed jurisdiction over complaint). In Complainant’s case, he attempted to amend his pending EEO complaint to add his removal action, and the amendment was denied by the AJ. Additionally, Complainant’s removal letter properly informed him that he could file an appeal at the MSPB over his removal.1 Complainant chose not to do so, and has persisted in attempting to keep the removal action as a part of his EEO complaint. This is not the meaning of “enmeshed” as we have defined it in our caselaw. Therefore, the AJ’s decision not to amend, and our affirmance of that decision in the previous appeal, was correct. As to Complainant’s argument that there were claims with which he attempted to amend to his complaint in 2007, but which were not properly processed by the Agency, and not addressed by the AJ, we find that there is no evidence in the record that the Agency processed Complainant’s claim that his arrest on May 9, 2007, for unlawful entry at the Agency was executed in retaliation for his exercise of his EEO rights. Although Complainant raised this issue with the AJ in the form of requesting relief for this issue, there is no evidence that the Agency had either accepted or dismissed a formal complaint, had processed his request to amend his complaint with the issue, or had even provided counseling on it. Complainant supplied an e-mail which showed that he made contact with an Agency EEO Specialist on June 9, 2007, regarding his intent to start the EEO process on this issue. As the AJ did not specifically accept or dismiss this allegation, we find that Complainant should have the opportunity to file a formal complaint. He is advised to contact an EEO Counselor at the Agency to initiate counseling within fifteen (15) calendar days of his receipt of this decision; the Agency shall consider his date of initial EEO contact to be June 9, 2007. We further find that the Agency’s request for reconsideration should be denied as well. The Agency argued that the language in the Posting Order was inaccurate in that it implied that an actual Title VII violation had been found. It requested that the language be altered to reflect that what was found was a violation of the regulations. We find that the Posting Order accurately reflected the findings of the AJ and the previous decision and did not contain a clearly erroneous interpretation of material fact or law. A default finding is, for all intents and purposes, a “finding” of discrimination, and it is remedied as such. See Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Therefore, we decline to revise the language in the Posting Order. After reviewing the previous decision and the entire record, the Commission finds that the requests fail to meet the criteria of 29 C.F.R. § 1614.405(b), and it is the decision of the Commission to DENY the requests. The decision in EEOC Appeal No. 0120103671 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. ORDER The Agency, to the extent it has not already done so, is ordered to take the following remedial actions: 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 Complainant’s official personnel file. 3) The Agency shall post a notice in accordance with the below-entitled paragraph, “Posting Order.” 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 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. ATTORNEY'S FEES (H0610) 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. 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 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 November 21, 2011 Date 1 Although the removal letter also informed Complainant he could alternatively file an EEO complaint over the removal, it would then have been a mixed-case EEO complaint. Mixed-case EEO complaints do not have the option of a hearing before an EEOC AJ, but following the investigation receive a final agency decision which is appealable to the MSPB. See 29 C.F.R. § 1614.302. Therefore, even if the AJ had granted the motion to amend, the AJ would have been unable to entertain the removal action in the EEOC hearings process. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0520110349 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0520110349