Gaynell A.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionSep 20, 20180120172099 (E.E.O.C. Sep. 20, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gaynell A.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency. Appeal No. 0120172099 Hearing No. 443-2017-00087X Agency No. ARFORSCOM16JUN02162 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s April 18, 2017 final action dismissing her complaint of unlawful 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an EEO Specialist, GS-0260-11, in the Agency’s Office of Equal Employment Opportunity in Fort McCoy, Wisconsin. On September 22, 2016 (and amended on January 8, 2017), Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment on the bases of race (African-American), sex (female), religion (Pentecostal), color (dark skin complexion), disability, age, and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia: 1. In 2007, her supervisor mocked her religion; 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. 0120172099 2 2. In 2007 and 2016, she was not afforded the opportunity to be trained to perform duties on systems, processing of complaints, or other specialist projects; 3. In 2008, she received a counseling by her supervisor under the instruction of the EEO Director; 4. On March 5, 2014, she was not selected for a GS-0260-12, Senior EEO Specialist position announced under Job Announcement No. NCDE14391875125744OD; 5. On December 22, 2014, she was not selected for a GS-0260-12, Senior EEO Specialist position announced under Job Announcement NCDE14391875125708; 6. On September 28, 2015, co-workers were allowed to verbally attack her, calling her mental, disgruntled, black cake, monkey, piece of crap, and black witch; 7. In February 2016, she applied for the Civilian Education System (CES) course and her supervisor delayed approving her request to attend the CES course which caused her to be placed on a waiting list. Her supervisor stated that she was not eligible to attend the CES course; 8. On July 1, 2016, during the Disability Program Manager’s (DPM) course, her supervisor mentioned Complainant’s EEO complaint to some of the attendees in the class; 9. On December 12, 2016, the EEO Specialist, stated he met with former co-workers while on a temporary duty assignment (TDY) in Germany, and she (Complainant) believes the purpose of the meeting was to gather information against her which constitutes a defamation of her character; 10. On December 16, 2016, the EEO Specialist did not give her the same opportunity as other co-workers to leave early from work because of a snowstorm. She completed her tour of duty while all other coworkers left early and before their tour of duty ended. Prior to the Agency’s completion of the investigation and the expiration of the 180-day regulatory timeframe, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On March 20, 2017, the AJ assigned to the matter held an Initial Conference call with the parties. During the conference call, both parties acknowledged that Complainant’s request for a hearing was premature. As a result, the AJ issued an Order of Dismissal dismissing the hearing request. In the Dismissal Order, the AJ erroneously ordered the Agency to issue a final order within 40 days and to provide Complainant appeal rights to the Commission. Pursuant to that order, on April 18, 2017, the Agency issued a final action fully implementing the AJ’s dismissal order with appeal rights to the Commission. Complainant filed the instant appeal in which she states that she was confused about her options for requesting a hearing and that she wished to have her case heard by an AJ. The Agency opposed the appeal arguing that the AJ had the authority to dismiss the complaint and that both parties agreed during the conference call that Complainant’s hearing request was untimely filed. 0120172099 3 ANALYSIS AND FINDINGS After filing a formal complaint, a complainant may request a hearing before an EEOC Administrative Judge after 180 days from filing the formal complaint or after the Agency has completed its investigation, whichever comes first. See 29 C.F.R. § 1614.108(f). Here, Complainant requested a hearing prior to the Agency’s completion of its investigation and prior to the expiration of the 180-day timeframe.2 The record reveals that the AJ correctly dismissed the hearing request as premature; however, the AJ erred by not remanding the complaint to the Agency for further processing. Therefore, the Commission remands the matter to correct the procedural errors and to preserve Complainant’s hearing rights. The Agency’s April 18, 2017 final action is VACATED. The Commission REMANDS this matter to the Agency for further processing in accordance with the ORDER below. ORDER To the extent it has not already done so, the Agency shall issue to Complainant a copy of the investigative file. The Agency shall submit to the Hearings Unit of the Milwaukee Area Office a request for a hearing on the remanded complaint within thirty calendar days of the date this decision was issued. The hearing request must include a brief explanation that it is being made pursuant to this decision, and be accompanied with the complaint and investigative file and a copy of this decision. The Agency shall provide a copy of the hearing request to the Compliance Officer at the address set forth herein, and a copy to Complainant and his representative. Thereafter, an Administrative Judge shall 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). 2 The record indicates that the Agency completed its investigation of the complaint on April 10, 2017. 0120172099 4 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. 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). 0120172099 5 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 September 20, 2018 Date Copy with citationCopy as parenthetical citation