Golden L.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Jan 23, 2020

2019004975 (E.E.O.C. Jan. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Golden L.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency. Appeal No. 2019004975 Hearing No. 490-2017-00184X Agency No. 200I-0614-2017100642 DECISION On June 22, 2019, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 7, 2019, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Housekeeping Aid, WG-3566-02, at a VA Medical Center’s Environmental Management Service in Memphis, Tennessee. 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. 2019004975 2 On January 19, 2017, Complainant filed an equal employment opportunity (EEO) complaint alleging that she was subjected to harassment based on her sex (female), disability (cerebral palsy & shoulder2), and age (55) when: 1. During a meeting on November 9, 2016, her first line supervisor (S1) “threatened and intimidated” her when he “dehumanized” her and told her she was “unable to do anything.” 2. On November 14, 2016, S1 reassigned her to a location which made her feel “less than a whole person with nothing to do.” 3. S1 “constantly” told her she “needs to move faster” and that her “cleaning is unacceptable.” 4. S1 repeatedly told her he “doesn’t care” if she has a disability. 5. S1 has repeatedly threatened to disapprove her leave if she did not fill out the request “right then and now.” 6. S1 has emphasized to her that she “needs to go home, retire, and fill out Social Security benefits.” Following an investigation, the Agency mailed Complainant the report of investigation with the right to request a hearing before an Administrative Judge (AJ) with the EEOC. It was mailed to Complainant at her post office box (hereinafter referred to as “address 2”), and to her non-attorney representative. Via mail, Complainant requested a hearing. In her request, she provided the name and address of her non-attorney representative, and on the mailing envelope her street address (hereinafter referred to as “address 1”).3 The AJ, in April 2018, acknowledged receipt of the hearing request and ordered various actions. The AJ mailed this order to Complainant at address 2 except for what appears to be a typographical error resulting in an incorrect digit of her post office box number (hereinafter referred to as “address 3”), as well as to her non-attorney representative and the Agency. 2 In her transcribed EEO investigative affidavit, Complainant indicated that around 2015, she dislocated and injured her shoulder using a machine at work, and this injury prevents her from performing duties located up high, such as dusting vents on the ceiling. 3 The hearing request mailing envelope contains the correct spelling of Complainant’s street address. In her EEO complaint, Complainant misspelled her street name, which likely caused the EEO office in its pre-investigative acceptance letter to do the same, albeit slightly differently. When Complainant’s address with the two misspelled street names are entered into the United States Postal Service’s website, the website comes back with the official address - the same one on Complainant’s hearing request envelope. 2019004975 3 Following the AJ’s order, the Agency commenced discovery, mailing its request for information, admissions, and documents to Complainant at the incorrect address 3, as well as to her representative. After the deadline to respond to the discovery request passed, the Agency by email advised Complainant’s representative of this and gave another day to respond, but got no response.4 Thereafter, the Agency filed a motion to compel Complainant to respond to its discovery request, mailing copies to Complainant at address 3 and her representative. On June 12, 2018, the AJ granted the motion, ordered Complainant to respond to the discovery request, and mailed this to Complainant at address 3, as well as to her representative. After the deadline elapsed with no response, the Agency filed a motion to dismiss Complainant’s request for a hearing for failure to prosecute and shortly thereafter filed a motion for summary judgment, mailing copies of each to Complainant at address 3. Nearly eight months later, the AJ issued an order to Complainant to provide information, recounting and directing as follows. After some mail to Complainant was returned as undeliverable and some not, she realized she had three mailing addresses for Complainant, i.e. address 1 (the street address as misspelled by the EEO office in the acceptance letter), 2 and 3. At her direction an EEOC legal assistant called Complainant twice and her representative once, each time leaving a voicemail message, but got no response. None of the mailings to Complainant’s representative were returned as undeliverable. The AJ then issued a written order directing Complainant to advise whether: (1) she wants to continue her pursuit of this matter before the Commission since neither she nor her representative responded to the Commission’s telephonic inquiries, (2) she wants to withdraw her complaint in its entirety, or (3) withdraw her hearing request and get a FAD. Complainant was further directed to submit her and her representative’s current contact information, including email addresses, if any. She was warned that failure to respond would result in the immediate dismissal of Complainant’s hearing request and remand to the Agency for a FAD. This order was mailed on March 25, 2019, by first class mail to Complainant at address 1- the street name as misspelled by the EEO office in the acceptance letter, 2 and 3 and her representative. It was emailed to the Agency. After the deadline in the above order passed with no response, on April 9, 2019, the AJ dismissed Complainant’s request for a hearing and remanded her complaint to the Agency to issue a FAD. The Agency then issued a FAD. Therein, the Agency’s Office of Employment Discrimination Complaint Adjudication (OEDCA) recounted that by certified mail to Complainant sent on April 11, 2019, OEDCA requested she provide her current mailing address within 15 calendar days of receipt and warned that not doing so will be deemed a waiver of her right to a FAD (on the merits) 4 Prior to the discovery request deadline passing, the Agency left a voicemail for Complainant’s representative, got no response, then sent him a reminder email of the voicemail and asked him to call back. The Agency got no response. 2019004975 4 and serve as a basis to dismiss her complaint under 29 C.F.R. § 1614.107(a)(6). This regulation allows an agency to dismiss an EEO complaint where the complainant cannot be located, provided that reasonable efforts have been made to locate her and she has not responded within 15 days to a notice of proposed dismissal sent to her last known address. The record does not contain a copy of the April 11, 2019 letter or information of which address(es) it was sent. In the FAD, OEDCA wrote that since more than 15 days elapsed, and in light of Complainant’s failure to respond to multiple attempts to contact her by both the EEOC and the Agency, her complaint was dismissed under 29 C.F.R. § 1614.107(a)(6). The FAD was mailed to Complainant at address 1 - with the street name spelled correctly, 2 and 3, and her representative. The instant appeal followed. On appeal, Complainant, through her representative, asserts she fell at work on April 4, 2019, and was on bedrest for 21 days with prescribed pain medication, which hindered her mental capacity. In addition, she asserts her representative did not receive the letter requesting she provide a current reachable address that was sent by certified mail on “April 8, 2019”. She received this letter at her post office box on May 1, 2019, and made arrangements as soon as possible to respond, explaining she can’t read or write and depends on others to read for her.5 She asks that her case be reopened so it can be heard. In opposition to Complainant’s appeal, the Agency argues that Complainant did not submit documentation supporting she was on bedrest for 21 days, or explain why she and her representative did not receive the AJ’s March 25, 2019 Order, which was sent to Complainant’s addresses 1 (the street name as misspelled by the EEO office in the acceptance letter), 2 and 3. The Agency argues that Complainant is responsible for the errors of her chosen representative. ANALYSIS AND FINDINGS Where a complainant is represented by someone who is not an attorney, time limits run from receipt of documents by the complainant, not their representative. 29 C.F.R. § 1614.402(b) & .605(d). As recounted above, much of the correspondence mailed to Complainant by the AJ and the Agency during the hearing process was sent to address 3, an incorrect address (and not addresses 1 and 2). Complainant provided address 1 with her hearing request, and testified that she could be reached at address 2 in her transcribed EEO investigative affidavit. She never provided address 3, which was created by the AJ and the Agency due to a typographical error neither caught. 5 In her transcribed EEO investigatory affidavit, Complainant testified that she can’t read or “really write”, and her sister reads for her. 2019004975 5 This resulted in Complainant more likely than not failing to receive the AJ’s Acknowledgement and Order, the Agency’s discovery request and subsequent motion to compel Complainant to respond, the AJ’s order granting the motion, the Agency’s motion for failure to prosecute, and the Agency’s motion for summary judgement. Still, after the AJ realized there may be an address error, at his direction an EEOC legal assistant called Complainant twice and her representative once, each time leaving a voicemail message, but they did not respond. The AJ followed up with an order on March 25, 2019, directing Complainant to respond to various options on how she wanted to proceed with her complaint and to provide her current contact information, and warned that failure to respond would result in the immediate dismissal of her hearing request and remand to the Agency for a FAD. The order was mailed to Complainant at address 1 (the street name as misspelled by the EEO office in the acceptance letter), 2 and 3, and to her representative. After Complainant did not respond, the AJ effected the warning. On appeal, Complainant does not comment on any of this. Given the above, we find that the AJ did not abuse his discretion when he dismissed Complainant’s request for a hearing, a measured sanction. The Agency, however, went further than the AJ by dismissing Complainant’s complaint under 29 C.F.R. § 1614.107(a)(6). This action lacks sufficient support. First, the record does not contain a copy of the OEDCA’s April 11, 2019 warning letter, a prerequisite for applying 29 C.F.R. § 1614.107(a)(6). Second, in applying 29 C.F.R. § 1614.107(a)(6), the Agency relied in part on Complainant’s failure to respond to multiple attempts by the EEOC and Agency to contact her, much of which Complainant is not accountable to the extent they were made using an incorrect address created by a typographical error of the AJ and the Agency. Accordingly, the FAD is REVERSED. ORDER Within 65 calendar days of the date of this decision, the Agency shall issue a FAD on the merits of Complainant’s complaint based on the evidence developed during the investigation pursuant to 29 C.F.R. § 1614.110(b). Unless Complainant advises otherwise, the Agency shall mail the FAD to Complainant at addresses 1 and 2, and her representative.6 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. 6 Complainant placed address 1 on the mailing envelope of her hearing request and gave address 2 in her transcribed EEO investigative affidavit. 2019004975 6 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2019004975 7 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. 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 January 23, 2020 Date