0120093119
11-10-2009
Barbara D. Williams, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Barbara D. Williams,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120093119
Agency No. ARMEADE08MAR00966
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's July 1, 2009 final decision concerning her equal
employment opportunity (EEO) complaint alleging 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. Complainant alleged that the
agency discriminated against her on the basis of reprisal for prior
protected EEO activity when:
1. On December 14, 2007, she received an overall rating of 2 rather
than 1 by her immediate supervisor on her evaluation covering the period
of April 16, 2007 through October 31, 2007;
2. On March 13, 2008, she received a revised evaluation by her
immediate supervisor with an overall rating of 1, but with a remark
thereon that this occurred per the instruction of the Commander; and
3. The Commander failed to move complainant from under the
supervision of the above supervisor between January 22, 2008 and April 23,
2008, even though complainant complained of harassment by the immediate
and second line supervisors.1
On April 1, 2009, the agency provided complainant a copy of the
investigative record and provided her with the right to request a hearing
before an EEOC Administrative Judge (AJ) or a final agency decision.
Complainant indicated that she mailed a request for a hearing to
the agency and the EEOC's Baltimore Field Office on April 15, 2009.
Complainant provided a copy of an order by an AJ requesting that the
agency provide the complaint record. In that order, the AJ noted that
complainant's request for a hearing was received by the EEOC on April 20,
2009.
The agency issued its final decision on July 1, 2009. In its decision,
the agency noted that complainant failed to request a hearing or an
FAD. Based on complainant's failure to respond, the agency issued its
decision finding no discrimination. Complainant appealed noting that
she timely requested a hearing. As such, the agency's final decision
should be vacated and the matter remanded for further processing before
the EEOC AJ.
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that complainant has
the right to request a hearing before an AJ within thirty (30) days of
receipt of the investigative file.
Here, the record contains a copy of complainant's request for a
hearing. Therein, complainant signed and dated the form on April 14,
2009. She mailed the request for a hearing on April 15, 2009. The
record further reflects that complainant's request was received by the
EEOC's Baltimore Field Office on April 20, 2009. We find that complainant
submitted his request for a hearing in a timely manner, contrary to the
agency's determination that a request for a hearing was not made at all.
CONCLUSION
Therefore, after a careful review of the record, it is the decision of the
Commission to VACATE the FAD finding that the agency did not discriminate
against complainant and we REMAND this matter to the agency for further
processing in accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Baltimore Field
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the com-plaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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 (R0408)
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 (Z1008)
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 10, 2009
__________________
Date
1 Complainant wrote that the second line supervisor left on January 17,
2008.
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0120093119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093119