Emily Z.,1 Complainant,v.Admiral Michael S. Rogers, Director, National Security Agency, Agency.

Equal Employment Opportunity Commission

Sep 26, 2018

0120161514 (E.E.O.C. Sep. 26, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Emily Z.,1
Complainant,

v.

Admiral Michael S. Rogers,
Director,
National Security Agency,
Agency.

Appeal No. 0120161514

Hearing No. 531-2016-00135X

Agency No. 15-002

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the February 10, 2016 final agency decision (FAD) concerning her
equal employment opportunity (EEO) complaint alleging employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final
order and REMANDS the matter for further processing in accordance with the ORDER below.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Target Digital
Network Analyst with the Agency at an Extended Enterprise field site in Hawaii. Complainant is
hearing impaired and requires the services of an interpreter. Complainant states that interacting
with people was the essential function of her position and she needed the services of an
interpreter to communicate quickly. Complainant requested interpreting services through the
Office of Disability Affairs (ODA) by completing a form online on the ODA’s website.
Complainant would then receive a response advising whether the request was approved or
denied. Complainant claims that beginning in August 2014, she submitted numerous requests
for interpreting services though ODA that were either denied or incompletely fulfilled.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
0120161514

2

On November 19, 2014 (and amended on April 28, 2015), Complainant filed a formal complaint
alleging that the Agency discriminated against her on the basis of disability when on various
dates in August 2014 through March 2015, she was denied sign language interpreting services as
a reasonable accommodation.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant sent a request for a hearing to the Commission’s
Baltimore Field Office; however, she did not send a copy of her hearing request to the Agency,
as instructed. The AJ dismissed Complainant’s request for a hearing. The Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency found that management had not
denied Complainant reasonable accommodation or subjected her to discrimination in violation of
the Rehabilitation Act. Complainant filed the instant appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant claims that she was confused by the language in the instructions
explaining how to properly request a hearing. Complainant states that she was undergoing
medical treatment and that the instructions were not written strongly enough to get her attention.
As a result, Complainant claims that she failed to send a copy of the hearing request to the
Agency. Complainant contends that she timely sent the request to the EEOC’s Baltimore Field
Office in accordance with the instructions and later sent the request to the Agency after receiving
the FAD. Accordingly, Complainant argues that she properly requested a hearing and requests
that the Agency vacate the FAD.

ANALYSIS AND FINDINGS

EEOC regulations state that an Agency shall provide a complainant with a copy of the
investigative file, and shall notify the complainant that within 30 days of receipt of the
investigative file, the complainant has the right to request a hearing and decision from an
Administrative Judge or may request an immediate final decision. 29 C.F.R. § 1614.108(f). In
addition, EEOC Regulation 29 C.F.R. § 1614.108(h) provides that a “complainant shall send a
copy of the request for a hearing to the agency EEO office.” Furthermore, in Gallo v. Dep’t of
Labor, EEOC Request No. 05A01085 (Oct. 9, 2002), the Commission held that failure to provide
an agency with notice of a hearing request may render the request legally deficient and,
therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of
conducting a hearing. Here, Complainant submitted a request for a hearing to the Commission’s
Baltimore Field Office, but failed to submit a copy of the request to the Agency. Commission
records indicate that the AJ dismissed the hearing request for lack of jurisdiction.

0120161514

3
The Commission notes, however, that in Cerisano v. U.S. Postal Serv., EEOC Appeal No.
0120041629 (Dec. 15, 2006), the Commission found that an agency must provide a complainant
with adequate notice that she risks forfeiture of her right to request a hearing by neglecting to
provide the agency with notice of her request for a hearing. In the instant matter, there is no
evidence in the record that the Agency informed Complainant that she risked forfeiture of her
right to a hearing if she failed to do so. The record only contains the hearing request form which
states that, “I am requesting the appointment of an Equal Employment Commission [sic]
Administrative Judge pursuant to 29 C.F.R. § 1614 108(g)” and “In accordance with the section
1614.108(g), I have sent a copy of this request to the following person at the Agency…” The
record is otherwise devoid of any evidence to show that Complainant had notice that she risked
forfeiting her right to a hearing by failing to provide the Agency notice of her request. The
Agency did not respond to Complainant’s appellate arguments or produce any evidence that it
advised Complainant that she risked forfeiting her right to a hearing.

The Commission has repeatedly stated that “the agency has the burden of providing evidence
and/or proof to support its final decisions.” Ericson v. Dep't of the Army, EEOC Request No.
05920623 (Jan. 14, 1993); See Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31,
1992). Here, the Agency has produced no evidence showing that Complainant was given
adequate notice that she risked forfeiting her right to a hearing. Therefore, because Complainant
had insufficient notice of the consequences of failing to notify the Agency of her hearing request,
the AJ should not have dismissed this matter. Furthermore, lacking this notice, the Commission
finds that Complainant’s November 16, 2015 request for a hearing at the Commission’s
Baltimore Field Office effectively transferred jurisdiction of the complaint to the Commission,
such that the Agency had no jurisdiction to issue a FAD on February 10, 2016.2

The Commission hereby advises Complainant that the Commission’s regulations and
Management Directive 110, in pertinent part, mandate that a complainant must provide the
Agency with a copy of every document she files with the Commission, whether it be at the
hearing level or on appeal. The Commission further advises Complainant, that by virtue of this
decision, she has clearly been put on notice of the requirement to provide the Agency with a
copy of all documents she files with the Commission.

Accordingly, the Commission finds that, under the specific circumstances of this case, the
Agency’s final decision must be VACATED, and Complainant’s complaint must be
REMANDED to the Agency for further processing in accordance with the Order below.

ORDER

2 The Commission notes that it finds no fault in the Agency issuing the FAD, as it acted properly
in issuing the FAD after it received no response from Complainant. Nonetheless, the record
simply does not support that Complainant received adequate notice of the consequences of
failing to notify the Agency of her request for a hearing, notwithstanding the significant
administrative processing delay and cost that has resulted.
0120161514

4
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the
EEOC’s Baltimore Field Office within fifteen (15) calendar days of the date this decision is
issued. 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. Thereafter, the
Administrative Judge shall process the hearing request and 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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 (M0617)
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.
0120161514

5
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (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.
0120161514

6
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

September 26, 2018
Date