0420180018
05-30-2018
Berenice R.,1 Petitioner, v. James C. Duff, Director, Administrative Office of the U.S. Courts, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Berenice R.,1
Petitioner,
v.
James C. Duff,
Director,
Administrative Office of the U.S. Courts,
Agency.
Petition No. 0420180018
Prior Petition No. 0420170019
DECISION ON A PETITION FOR CLARIFICATION
On May 3, 2018, the Equal Employment Opportunity Commission (EEOC or Commission) docketed a petition for clarification2 to examine the terms of an Order set forth in EEOC Petition for Enforcement No. 0420170019 (November 17, 2017). The Commission accepts this petition for clarification pursuant to 29 C.F.R. � 1614.503(c).
BACKGROUND
This case has a protracted procedural history. In EEOC appeal No. 0120061807 (September 23, 2010), the Commission vacated the Agency's final decision finding no discrimination regarding Complainant's claim that the Agency discriminated against her when it determined not to place her position into a higher pay-band. The Commission found that the Agency had failed to properly notify Complainant that her Equal Pay Act (EPA) claim was dismissed, nor had it addressed the merits of the EPA claim. The Commission remanded the complaint for the Agency to conduct a supplemental investigation into the EPA claim. The Commission's Order provided that the agency "shall issue to Complainant a copy of the supplemental investigative file and also shall notify Complainant of her appropriate rights ... ."
The Agency conducted the supplemental investigation and thereafter issued a final agency decision, again finding no discrimination. Complainant appealed to the Commission. In EEOC Appeal No. 0120120996 (October 16, 2015), the Commission vacated the Agency's final decision and remanded the complaint, ordering that the Agency should offer Complainant the choice between a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision.
Thereafter, Complainant filed a petition for enforcement arguing that the Agency had not offered the choice between a hearing before an EEOC AJ or a final agency decision. In Petition No. 0420160011 (February 23, 2017), the Commission noted that the Agency had not properly advised Complainant of her rights and, in fact, had advised Complainant (1) that she could have a hearing only before a hearing officer selected by the Agency, and (2) that if she chose to have such a hearing, she would be required to waive her right to appeal to the Commission. The Commission therefore found that the Agency was not in compliance with its Order in Appeal No. 0120120996.
Complainant subsequently filed a second petition for enforcement, arguing that the Agency still had not offered her the opportunity to request a hearing before an EEOC AJ. The Agency for the first time challenged the Commission's jurisdiction over Complainant's complaint. In Petition No. 0402170019 (November 30, 2017), the Commission rejected the Agency's jurisdictional argument and again ordered the Agency to comply with the Commission's order to offer Complainant a hearing before an EEOC AJ.
Following that decision, the Agency submitted the pleading which we have construed as a Petition for Clarification. The Agency argues therein that it has offered Complainant a hearing before its designated hearing officer, together with the right to appeal that decision on her complaint to the Commission.
FINDINGS and CLARIFICATION
Upon review of the record of these proceedings, the Commission finds that the Agency's offer of a hearing before its designated hearing officer, together with appeal rights to the Commission, is sufficient to satisfy the Commission's order in Appeal No. 0120120996, et al., that Complainant be offered a hearing with appeal rights. We note that while the Agency initially misstated that Complainant was entitled to a hearing before a hearing officer only if she waived her right to appeal to the Commission, the Agency has since acknowledged that Complainant is entitled to both request a hearing and to appeal the resulting decision to the Commission.3 Accordingly, we find that the Agency's offer a hearing by its hearing officer along with the right to appeal the subsequent agency decision to the Commission is acceptable.
There is no right of administrative appeal from this decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. � 216(b)) to file a civil action in a court of competent jurisdiction within two years or, if the violation is willful, three years of the date of the alleged violation of the Equal Pay Act regardless of whether you have pursued any administrative complaint processing. The filing of the 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
__5/30/18________________
Date
1 This case has been randomly assigned a pseudonym which will replace Petitioner's name when the decision is published to non-parties and the Commission's website.
2 Following the prior decision in this case, Petition for Enforcement (PFE) No. 0420170019, the Agency submitted a pleading styled as a request for reconsideration of that decision. However, our regulations do not provide for reconsideration of a decision issued on petition for enforcement. Accordingly, we have docketed the Agency's request as a petition for clarification (PFC).
3 We note that the current iteration of the Agency's AO Manual, as found on its website, provides that a complainant who elects to have a hearing must waive the right to appeal to the Commission, as well as the right to bring a civil action in U.S. District Court. http://www.uscourts.gov/sites/default/files/feps-1c.pdf, AO Manual, Chap. 4, � 330.60.10 (accessed May 10, 2018). The Agency is advised to correct its manual to reflect that, under a "grandfather provision" in the Administrative Office Personnel Act of 1990, 28 U.S.C. � 602, so-called "pre-Act complainants," i.e., persons employed by the Agency in the competitive service prior to the effective date of the Act, retain the right to both a hearing, an appeal to the EEOC, and the right to bring a civil action in U.S. District Court.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0420180018
4
0420180018