0120150246
08-04-2016
Iris D.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
Iris D.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120150246
Hearing No. 430-2014-00407X
Agency No. DDFY14029
DECISION
Complainant filed an appeal from the Agency's 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision and REMANDS the complaint to the EEOC Charlotte District Office for further processing in accordance with this decision.
ISSUE PRESENTED
Whether the Agency's issuance of a final decision (FAD) after it was notified that Complainant had requested an administrative hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) was appropriate.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Assistant Principal at the Agency's Gordon Elementary School (GES) in Fort Bragg, North Carolina. In late summer/early fall of 2013, Complainant, and AP1, another Assistant Principal worked at the Butner Primary School (BPS). AP1 asked Complainant to switch laptop computer bags; Complainant agreed and they switched bags. Soon after, both Complainant and AP1 transferred and left BPS. Complainant transferred to GES on August 20, 2013.
AP2, a new Assistant Principal arrived at BPS on November 17, 2013. Within a few days, AP2 realized that he was missing a laptop bag and a power cord to his computer. AP2 asked the School Support Assistant (SSA) if he either knew where those items were or if he could obtain replacements. The SSA stated that he did not know but would ask the former Assistant Principals if they had any information about the missing bag and power cord. AP2 also told the Principal of BPS (PBPS) about the missing items. The PBPS called the Education Operations Chief (EOC) to ask if he had any extra equipment or could replace the missing bag and charger. The EOC told the PBPS that the SSA would need to look for them first, before they could consider replacing the items.
On November 22, 2013, the SSA called Complainant to ask if she had any information regarding the missing laptop bag and power cord. Complainant informed the SSA that she did not have the items but that she had traded bags with AP1. The matter was resolved when AP1 returned the items. AP1 sent an email on November 26, 2013, informing everyone that the issue had been resolved.
On February 5, 2014, Complainant filed a formal complaint alleging discrimination based on race (African-American), color (Brown skin hue), sex (female), age (Date of Birth: 10/03/1962) and reprisal (previous EEO activity) when: (1) on November 22, 2013, the PBPS told the SSA that Complainant was a person of interest to be questioned regarding missing Government property (computer carrying case and power cord). On April 8, 2014, the Agency agreed to amend Complainant's EEO complaint to add the following claims:
2. On November 22, 2013, the SSA called Complainant to inform her about the PBPS's report to the District Superintendent's Office and also proceeded to interrogate her about the missing computer items from BPS;
3. On November 22, 2013, the PBPS directed the SSA to call Complainant to interrogate her about the missing computer items from BPS;
4. On November 22, 2013, the PBPS falsely reported Complainant to the EOC as a person of interest to be interrogated as part of an investigation regarding missing computer inventory from BPS; and
5. On November 19, 2013, the PBPS falsely identified Complainant as person of interest to be interrogated due to alleged involvement in missing computer inventory from BPS.
At the conclusion of the investigation, the Agency mailed the report of investigation (ROI) to Complainant on June 12, 2014. Initially, the Agency sent the ROI via FedEx to an old address but, once it became aware of the mistake, it sent another copy of the ROI to her current address via first class mail, also on June 12, 2014. Because the Agency did not receive a response from Complainant within 30 days, it initiated a contract to produce a FAD on July 31, 2014.
On August 22, 2014, Complainant filed a Hearing Request with the EEOC Charlotte District Office because she had not received the ROI within 180 days. On September 5, 2014, the AJ issued an order directing the Agency to submit a copy of the ROI and investigative file.
On September 12, 2014, the Agency issued a FAD finding no unlawful discrimination. Specifically, the Agency found that, although Complainant was a member of protected classes based on race, sex, age, and prior EEO activity,2 the Agency articulated a legitimate, non-discriminatory reason for asking Complainant if she had information related to the missing laptop bag and power cord. When AP2 arrived at BPS, he noticed that he was missing these items and asked the SSA and the PBPS how he could obtain them. The SSA called Complainant and four other individuals in an attempt to locate the missing items, which were returned by AP1. The Agency found that the SSA contacted Complainant because the equipment was discovered to be missing less than a week before she was called, and not out of discriminatory or retaliatory intent. Additionally, the Agency noted Complainant was not singled out for questioning and that she was one of five individuals that the SSA contacted. The Agency found that Complainant had not shown any evidence that she was "interrogated" based on her sex, race, age or in reprisal for prior EEO activity and concluded that she had not proven unlawful discrimination.
Also on September 12, 2014, the Agency mailed the investigative file to the EEOC Charlotte District Office, in compliance with the AJ's order. An Agency EEO Program Manager (PM) also emailed Complainant a copy of the transmittal letter, without the attachments. Complainant responded that she had not received a copy of the investigative file, to which the PM responded that the Agency had previously sent Complainant a copy of the file. Complainant argued that the PM's claim that he had previously sent her the file was false. The PM emailed Complainant disputing her assertion and informed her that he would mail her another copy. Complainant received a copy of the ROI on September 22, 2014. On September 23, 2014, Complainant filed a motion for default judgment alleging that the PM falsified documents in support of his claim that he sent her a copy of the ROI in June, and on October 18, 2014, Complainant filed an appeal of the FAD with the EEOC's Office of Federal Operations (OFO).
On October 20, 2014, the Agency filed a Motion to Dismiss or in the Alternative Motion for Summary Judgment with the AJ. The Agency asserted that, after it provided Complainant with a copy of the ROI, it did not receive notification of her request for a hearing within 30 days and proceeded with the issuance of the FAD. The Agency argued since the FAD was properly issued, jurisdiction was with OFO. Alternatively, the Agency argued that Complainant's case was appropriate for a decision without a hearing. The Agency stated that there were no facts in dispute and that the Agency's legitimate, non-discriminatory reason for asking Complainant about the missing laptop bag and power cord was AP2's arrival at BPS and his request for those items.
On November 6, 2014, the AJ issued an order dismissing the hearing request, after conducting an Initial Conference on October 27, 2014. The AJ noted that the Agency acted timely with regard to Complainant's investigation and that, while there was a dispute as to whether Complainant received a copy of her ROI, it was undisputed that Complainant did not notify the Agency of her request for a hearing. As such, the Agency was unaware of her request for a hearing when it issued the FAD. The AJ held that, because a FAD was issued, any appellate review was with OFO and dismissed Complainant's hearing request.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges that the Agency denied her due process when it "withheld the FAD since June 2014, and had a plan in motion to prevent Complainant from proceeding to a hearing." Complainant argues that had she had the opportunity for a hearing, she would have provided proof of disparate treatment.
The Agency requests that Complainant's appeal be dismissed for failure to state a claim, or in the alternative, affirm the FAD finding no discrimination.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.109(a) provides, in pertinent part:
When a complainant requests a hearing, the Commission shall appoint an administrative judge to conduct a hearing in accordance with this section. Upon appointment, the administrative judge shall assume full responsibility for the adjudication of the complaint, including overseeing the development of the record.
Notwithstanding the complex procedural history of this matter, there is no dispute that before the Agency issued its FAD on September 12, 2014, it was aware that Complainant's complaint was pending before an Administrative Judge. We note in this regard that the Agency, in compliance with the AJ's September 5, 2014, Order, provided the investigative file to the AJ on September 12, 2014, the same day it issued the FAD. Therefore, the AJ erred in finding that the Agency was unaware of Complainant's hearing request before it issued its FAD. Accordingly, we find that the Agency did not have jurisdiction to issue a FAD in this case on September 12, 2014. We therefore will vacate the Agency's FAD and remand the complaint to the EEOC Charlotte District Office for appropriate disposition in accordance with 29 C.F.R. � 1614.109 and the Order below.3
CONCLUSION
After a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, we find that the Agency did not have jurisdiction over the complaint at the time it issued its FAD, and that Complainant's complaint fails to state a claim upon which relief may be granted. We therefore VACATE the Agency's FAD and REMAND the complaint to the EEOC Charlotte District Office for further processing.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Charlotte District Office a request for a hearing within 15 calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within 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. Thereafter, the Administrative Judge shall issue a decision 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 (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 (M0416)
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 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. The requests 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 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
_8/4/16_________________
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.
2 While Complainant alleged discrimination based on color, the Agency found that she did not raise an allegation based on color that was distinct from race and it combined the bases, for the purposes of the FAD, into the single basis of race.
3 We note that, under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). See also Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997) (complaint subject to dismissal where "it appears beyond doubt that the complainant can prove no set of facts in support of the claim that would entitle the complainant to relief," i.e., even if the allegations are taken as true, they do not state a claim upon which relief may be garnted). If a complainant cannot establish that he or she is aggrieved, the complaint must be dismissed for failure to state a claim. 29 C.F.R. �� 1614.107(a)(1), 1614.109(b).
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2 0120150246
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013