0120123136
07-10-2015
Complainant v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120123136
Hearing No. 560-2011-00154X
Agency No. 2003-0623-2010101017
DECISION
On August 2, 2012, Complainant filed an appeal from the Agency's July 3, 2012, final order 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUES PRESENTED
The issue presented is whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly dismissed Complainant's EEO complaint on the ground that Complainant did not file her formal complaint in a timely manner.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Dental Assistant at the Agency's Jack C. Montgomery Medical Center in Muskogee, Oklahoma. In a formal complaint that she signed on February 2, 2010, Complainant alleged that the Agency discriminated against her on the basis of national origin (Native American) when:
1. on March 23, 2009, A-1, a management official, "yelled and screamed" at her;
2. on March 31, 2009, A-1 called her a "stupid idiot;"
3. on September 22, 2009, A-1 denied her request for sick leave;
4. on September 30, 2009, A-1 "yelled and screamed" at her in front of others;
5. on October 1, 2009, A-1 falsely accused her of being out of uniform;
6. on October 5, 2009, A-1 denied her request to use her time-off award;
7. on November 16, 2009, A-1 "wrote [her] up";
8. on November 18, 2009, A-1 disapproved her request for leave;
9. on November 20, 2009, A-1 gave her "dirty looks;"
10. on November 27, 2009, A-1 provided her with a poor performance rating;
11. on November 27, 2009, A-1 falsely accused her of intimidating coworkers;
12. on December 1, 2009, A-1 charged her with being absent without leave (AWOL);
13. on December 1, 2009, A-1 "yelled and screamed" at her;
14. on December 10, 2009, she overheard A-1 and another employee discussing how they could terminate her (Complainant);
15. on December 16, 2009, A-1 charged her Absent without Leave (AWOL); and
16. on December 31, 2009, A-1 issued her written notification that, effective January 9, 2010, she would be terminated from her probationary position as a Dental Assistant.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) on the ground that Complainant did not file her formal complaint within fifteen days of her receipt of the Notice of Right to File a Discrimination Complainant (NRTF). In that regard, the Agency stated that Complainant received the NRTF on February 1, 2010, and filed her formal complaint via fax on February 19, 2010.
Complainant appealed the dismissal to this Commission. On appeal, Complainant asserted that she filed her formal complaint on February 1, 2010, by sending it to the EEO Counselor in a self-addressed envelope, in accordance with the EEO Counselor's request. She also asserted that she called the EEO Counselor "almost every day" to inquire whether the complaint had arrived, that "they" said that the Counselor was out of the office for several days, that she left voice-mail messages for the EEO Counselor, and that she eventually sent the complaint to the Agency via fax and certified mail.
In our previous decision, we noted that the Agency bears the burden of obtaining sufficient evidence to support its determination regarding timeliness. We also noted that Complainant stated that she faxed a copy of the complaint to the Agency after the Agency failed to confirm that it had received the complaint. We concluded that, to support its determination in this case, the Agency should have provided an affidavit from the EEO Counselor concerning Complainant's claim that she filed her complaint on February 1, 2010. In the absence of such information, we found that the Agency did not establish that Complainant filed her EEO complaint in an untimely manner. Accordingly, "we conclude[d] that the Agency improperly dismissed Complainant's complaint." We reversed the Agency's dismissal of the complaint and remanded the matter to the Agency for further processing. EEOC Appeal No. 0120101873 (Aug. 6, 2010). Neither party requested reconsideration of the decision.
The Agency conducted an investigation and, at the conclusion of the investigation, provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing.1
In a deposition taken during the pre-hearing process, Complainant again asserted that she mailed the complaint to the EEO Counselor prior to faxing it and that she left voice-mail messages for the EEO Counselor after unsuccessfully attempting to call the EEO Counselor. Complainant confirmed that she faxed the complaint after she finally spoke to the EEO Counselor.
The Agency filed a Motion for Decision without a Hearing on April 12, 2012, and a Motion to Dismiss on April 30, 2012. In its Motion to Dismiss, the Agency asked the AJ to dismiss Complainant's complaint as untimely filed. The Agency argued that the facts do not support Complainant's assertion that she mailed her complaint prior to the expiration of the 15-day filing period. The Agency submitted an April 19, 2012, declaration in which the EEO Counselor stated that nothing in the Office of Resolution Management's electronic file for Complainant's complaint showed that Complainant called the EEO Counselor. She also stated, "I do not remember talking to [Complainant]. However, if a complainant calls me asking whether the complaint has been received, my usual procedure is to remind the complainant of the deadline and to tell them, if it is getting close to the deadline, to fax it." According to the EEO Counselor, she checked her leave records, according to which she did not take any leave between February 1 and 19, 2010, and was available for telephone calls during that period.
Complainant, through her attorney, filed a Reply to the Agency's Motion to Dismiss and the Agency's Motion for a Decision without a Hearing. She asked the AJ to deny the Motion to Dismiss on the grounds of res judicata, equitable estoppel, and stare decisis. Complainant argued that the Commission, in its previous decision, ruled that her formal complaint was timely. She also argued that the Agency did not notify her that the complaint could be dismissed if it was not timely filed and that there were no jurisdictional issues barring consideration of the complaint.
On June 14, 2012, the AJ dismissed Complainant's complaint on the ground that Complainant did not file the formal complaint in a timely manner. The AJ concluded that the doctrine of res judicata did not apply because the previous decision did not definitively hold that the complaint was timely filed, but stated only that the Agency had not met its burden, and it was not a final decision on the merits of the complaint. The AJ also concluded that the cases that Complainant cited with respect to stare decisis were not on point and that there was no merit to Complainant's equitable-estoppel argument. She found that the unrebutted evidence established that the Agency did not receive Complainant's complaint through the mail and that Complainant did not meet the applicable 15-day time limit when she faxed her complaint to the Agency on February 19, 2010.
On July 3, 2012, the Agency issued a final order fully implementing the AJ's decision. This appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant, through her attorney, reiterates her arguments concerning the doctrines of res judicata, equitable estoppel, and stare decisis. In addition, Complainant argues that the AJ misinterpreted statements in the record. The Agency raises no arguments on appeal.
STANDARD OF REVIEW
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both an AJ's decision to issue a decision without a hearing and the decision itself will be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, � VI.A. (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Pursuant to Commission Regulation 29 C.F.R. � 1614.106(b), a complainant must file his or her formal complaint within fifteen days of receipt of the notice of the right to do so. In our previous decision, we reversed the Agency's dismissal of Complainant's complaint. Although the previous decision did not expressly state that Complainant filed her formal complaint within fifteen days of her receipt of the NRTF, it clearly held that the Agency improperly dismissed the complaint as untimely filed. If the Agency believed that it had evidence to contradict that finding, then the appropriate course of action would have been to request reconsideration of the Commission's previous decision. It did not do so.
Under the "law of the case" doctrine, legal or factual determinations once rendered are generally binding in subsequent proceedings in the same case. Plunkett v. U.S. Postal Serv., EEOC Request No. 05920288 (May 14, 1992). Consequently, the Commission's determination that the Agency failed to establish that Complainant's complaint was untimely filed is binding on the parties. We find, therefore, that the AJ erroneously dismissed Complainant's complaint. See Bernerth v. U.S. Postal Serv., EEOC Appeal No. 0120120235 (Mar. 1, 2012) (AJ erroneously dismissed complaint for untimely EEO Counselor contact where Commission's previous decision found that agency did not establish complainant had actual or constructive knowledge of applicable time limits); Billingsley v. Dep't of Veterans Affairs, EEOC Appeal No. 01956856 (Sept. 24, 1996) (agency erroneously dismissed claim as untimely filed where Commission's previous decision found that agency failed to submit evidence that complainant received notice of final interview).
We note that the parties submitted arguments regarding a decision without a hearing and that, in light of her dismissal of the complaint, the AJ did not make a determination on the issue. Accordingly, we remand the complaint to the Hearings Unit for further processing. On remand, the AJ assigned to the case will rule on the motion for summary judgment, hold a hearing if appropriate, and thereafter address the merits of Complainant's complaint.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and REMAND the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall submit a request for a hearing to the Hearings Unit of the EEOC's Oklahoma City Area Office within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to also 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 request and complaint file have been transmitted to the Hearings Unit.
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), 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
July 10, 2015
Date
1 During the pre-hearing process, the AJ granted Complainant's motion to amend her complaint to add the bases of race, color, and age.
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0120123136
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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