0120180041
02-28-2018
Kristy E.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kristy E.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 0120180041
Agency No. BOR160347
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (FAD) dated August 21, 2017, dismissing her complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-0343-12 at the Agency's Bureau of Reclamation, Yuma Area Office facility in Yuma, Arizona.
On September 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (depression) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. From Fall 2013 to December 15, 2015, management bullied Complainant, subjected her to unreasonable and continuous expectations of perfection, required her to rework documents beyond the norm of quality assurance and control, rarely gave her challenging assignments, excluded her from meetings and other external activities, micromanaged her, and allowed her to become a scapegoat.
2. In October 2013, management reversed the approval of Complainant's leave.
3. In October 2013, management asked Complainant to give up her voluntary work with the Miss America Scholarship Program.
4. From January 2015 to December 2015, management pressed Complainant to learn Microsoft Project.
5. From September 2015 to December 2015, management monitored and judged Complainant for using leave.
6. On or about December 15,2015, management counseled Complainant about flexing her arrival time and changing to a fixed work schedule.
7. On or about February 2016, management placed Complainant on absence without leave (AWOL).
8. On or about May 6, 2016, management denied Complainant's request for a reasonable accommodation.
9. On October 3, 2016, management gave Complainant a 3.0 rating on her Employee Performance Appraisal Plan.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In its FAD, the Agency maintained that Complainant did not make an election and so the Agency subsequently issued a final decision, concluding no discrimination was established.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC regulations at 29 C.F.R. � 1614.108(f) provide that an agency shall provide a complainant with a copy of the investigative file and notification that, within thirty days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an AJ or may request an immediate final decision.
Here, the FAD states that the Agency sent the copy of the investigative file and the notice of Complainant's right to a hearing on June 1, 2017 ,and that she received it on June 5, 2017. On appeal, Complainant has submitted a copy of a completed and signed hearing request dated June 27, 2017, addressed to the EEOC Phoenix District Office, along with a United States Postal Service (USPS) certified mail receipt under tracking number 7016 2710 0000 8730 9533, showing that USPS picked up the item on June 28, 2017 and delivered it on June 30 at 10:40 am. We further take administrative notice of the fact that the Commission's internal records show that the hearing request was entered into our own records on July 5, 2017 and was docketed under EEOC Hearing No. 540-2017-00380X. We therefore find that the evidence of record shows that Complainant timely requested a hearing and is entitled to receive one.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, the Agency's final decision, which found that Complainant was not subjected to discrimination based on disability or reprisal, is VACATED, and the complaint is REMANDED for further processing consistent with this decision and the ORDER below.
ORDER
Within thirty (30) calendar days from the date this decision is issued, the Agency shall send a hearing request with a brief explanation, a copy of this decision and the complaint file to the Hearings Unit of the Commission's Phoenix District Office. The Agency shall reference EEOC Hearing No. 540-2017-00380X in its correspondence with the Phoenix District Office.
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 case 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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).
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
February 28, 2018
__________________
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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