0120132202
03-25-2015
Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120132202
Agency No. CRSD-CF-2010-00016
DECISION
On May 21, 2013, Complainant filed an appeal from the Agency's April 24, 2013 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.
At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist, GS-0360-14, at the Agency's Office of the Assistant Secretary for Civil Rights, Office of Adjudication and Compliance. Complainant filed a formal complaint alleging that the Agency subjected her to disparate treatment and hostile work environment harassment on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when: (1) on April 15, 2010, she was removed from her position as Acting Chief of the Program Adjudication Division; (2) on October 26, 2010, she learned that she was not selected for the position of Chief of the Program Adjudication Division, GS-0301-15, advertised under vacancy announcement number DMY-10-0045-MP; and (3) on January 4, 2011, she learned that the emails from when she was the Acting Chief had been removed from the Agency's email records.
On July 19, 2011, at the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). On July 23, 2011, Complainant requested a final decision from the Agency. In May 2012, Complainant received an unsigned and undated draft Agency decision finding discrimination.1 On March 29, 2013, in a letter addressed to the EEOC Hearings Unit of the Washington Field Office and copied to the Agency, Complainant requested a hearing before an AJ. On April 24, 2013, the Agency sent Complainant a final decision, dated March 13, 2013, finding no discrimination. Therein, the Agency stated that it was issuing the final decision because Complainant failed to request either a hearing or a final decision.
Complainant then filed the instant appeal. Among other things, Complainant argued that the Agency violated 29 C.F.R. Part 1614 when it issued a final decision only after she requested a hearing before an AJ. In opposition to the appeal, the Agency requested that the Commission affirm its final decision finding no discrimination. Specifically, the Agency argued that the draft decision was not controlling because it was not signed or executed by the Agency. Moreover, the Agency argued that Complainant's hearing request was improper because it occurred after the 30-day period provided in the election letter.
29 C.F.R. � 1614.110(b) requires an agency to issue a final decision within 60 days of receiving notification that a complainant has requested an immediate final decision from the agency. Here, the record reflects that Complainant requested a final decision in July 2011 but that the Agency did not issue a final decision until April 2013. The Commission is troubled by the length of time the Agency took to issue its final decision. Moreover, we take administrative notice that Complainant currently has a hearing request pending - for the instant complaint - before an AJ in the Washington Field Office (Hearing No. 570-2014-00253X).2 The Commission's records system reflects that the hearing request was docketed on October 23, 2013, assigned to an AJ on June 13, 2014, and reassigned to another AJ on October 17, 2014.
Given the above circumstances, and noting that Complainant's March 2013 hearing request predated her May 2013 appeal, we find that the instant complaint is currently before an AJ. Therefore, we DISMISS Complainant's appeal without prejudice, VACATE the Agency's final decision, and REMAND the matter to the Agency in accordance with this decision and the Order below.
ORDER
To the extent it has not already done so, the Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Washington Field Office 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 complaint file has been transmitted to the Hearings Unit.
In the event that the AJ dismisses Complainant's hearing request without addressing the merits of the instant complaint, the Agency shall reissue its final decision with appropriate appeal rights to the Commission.
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
__3/25/15________________
Date
1 The decision had the word "DRAFT" stamped on it.
2 We note that Hearing No. 570-2014-00253X includes both the instant complaint and another complaint involving Complainant (Agency No. CRSD-CF-2012-00013).
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0120132202
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120132202