0520140147
08-05-2016
Franchesca V.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Franchesca V.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140147
Appeal No. 0120131178
Agency No. 200J05682013100359
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in EEOC Appeal No. 0120131178 (June 24, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
ISSUE PRESENTED
The issue presented is whether the previous decision erred in reversing the Agency's final decision (FAD) which dismissed Complainant's formal complaint for untimely filing and failing to state a claim.
BACKGROUND
The previous decision found that the Agency erred when it dismissed Complainant's formal complaint on the grounds noted above. Complainant maintained that she was subjected to a hostile work environment based on reprisal (prior EEO activity) when, on October 19, 2012, HP, the Chief of Prosthetics, informed a coworker that Complainant might be filing an EEO complaint. Upon reversing the Agency's FAD, the complaint was remanded to the Agency for processing. Specifically, the decision held, in pertinent part, that the Agency did not meet its burden of establishing when Complainant received the Notice of Right to File a formal complaint, and that Complainant did allege a viable claim of reprisal that warranted further investigation to establish what had actually happened.
The Agency contends that Complainant signed an election form agreeing to receive complaint-related correspondence via email, and that on this form she also agreed that the date the Office of Resolution Management (ORM) delivered the correspondence would be used as the date of receipt for the purposes of calculating timeliness. According to the Agency, Complainant received the Notice of Right to File on November 14, 2012, but she did not file an EEO complaint until December 4, 2012.
CONTENTIONS ON REQUEST FOR RECONSIDERATION
In its Request for Reconsideration, the Agency contends that the appellate decision involves a clearly erroneous interpretation of a material fact or law which will have a substantial impact on the policies, practices, and or operation of the Agency. In this regard, the Agency maintains that the matter of whether the notice was received by Complainant on November 14, 2012, was never disputed by Complainant and therefore the previous decision erred by finding that it did not establish the date of delivery. The Agency further contends that in an effort to enhance the sufficiency and security of the EEO complaint process, and as a significant cost-saving measure, the Agency offered complainants the option to receive complaint-related correspondence via email. If the underlying decision is allowed to stand, the Agency maintains that its policy of allowing complainants to elect to receive complaint-related correspondence via email will automatically break down with respect to its ability to account for timeliness calculations.
With respect to the appellate decision's reversal of the final decision on the failure to state a claim ground, the Agency argues that even though the threshold is lower for reprisal claims than it is for other claims, there is nonetheless a threshold that Complainant has not met.
ANALYSIS AND FINDINGS
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The Agency is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9 � VII.A. (Aug. 5, 2015). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not met that burden in the instant Request.
The process the Agency describes here of allowing complainants to elect the manner in which they receive complaint-related correspondence can best be defined as a "variance" from the complaint processing procedures prescribed in the regulations. The Commission, in its discretion and for good cause shown, may grant agencies variances from the complaint processing procedures prescribed in the regulations, permitting them to conduct pilot projects concerning proposed changes to the complaint processing requirements that may later become permanent through regulatory change. See 29 C.F.R. � 1614.102.
Agencies desiring to request variances from the complaint processing procedures prescribed in the regulations must: (1) address these requests to the Director of the Office of Federal Operations; (2) identify the specific section(s) of the regulations from which they wish to deviate and exactly what they propose to do instead; (3) explain the expected benefit and expected effect on the process as a result of the proposed variance; (4) indicate the proposed duration of the pilot variance; (5) and discuss the method by which they intend to evaluate the success of the pilot variance. Id.
There is no evidence in the record to show that the Agency followed these steps to implement a pilot variance in the instant matter. As a result, we do not find that the previous decision clearly erred in finding that the Agency did not meet its threshold obligation of establishing when Complainant received the notice because it utilized an unapproved method of delivery, i.e., service by electronic mail.
Furthermore, we note that the Agency does not raise a specific issue with regard to the way Complainant's claim was defined. Like the previous decision, we find that the allegation that a high-ranking Agency official discussed Complainant's EEO activity with a co-worker, if true, would be conduct that is reasonably likely to deter Complainant or others from engaging in protected EEO activity. Therefore, we do not find that the previous decision clearly erred with respect to this issue.
CONCLUSION
Because the Agency has not put forth any arguments which the Commission finds to be material to the outcome of the underlying decision, or that were not previously considered in rendering the underlying decision, the Commission finds that the Agency has not demonstrated that the underlying decision involved a clearly erroneous interpretation of material fact or law. Additionally, the Agency has failed to successfully argue or demonstrate that the underlying decision would have a substantial impact on the policies, practices, or operations of the Agency. Accordingly, the decision in EEOC Appeal No. 0120131178 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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.
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. 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
__8/5/16________________
Date
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.
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