Maureen Hill, Complainant,v.Robert M. Gates, Secretary, Department of Defense, Agency.

Equal Employment Opportunity CommissionSep 17, 2009
0120080452 (E.E.O.C. Sep. 17, 2009)

0120080452

09-17-2009

Maureen Hill, Complainant, v. Robert M. Gates, Secretary, Department of Defense, Agency.


Maureen Hill,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

Agency.

Appeal No. 0120080452

Agency No. 06JCS043

DECISION

On November 8, 2007, complainant filed an appeal from the agency's October

4, 2007 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. The appeal is deemed timely and is accepted pursuant

to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission

VACATES the agency's final decision.

ISSUE PRESENTED

Did complainant properly request a hearing before an Administrative Judge

(AJ) of the EEOC rendering the agency's subsequent issuance of an October

4, 2007 FAD improper?

BACKGROUND

At the time of events giving rise to this complaint, complainant worked as

a Technical Information Specialist, GS-1412-14, in the Records Management

and Directives Unit, Information Management Division, Directorate

of Management, Office of the Chairman of the Joint Chiefs of Staff,

Washington Headquarters Services. On July 26, 2006, complainant filed

an EEO complaint (which she subsequently amended) alleging that she was

discriminated against on the bases of race (Black), sex (female), and

reprisal for prior protected EEO activity [arising under Title VII] when

she was subjected to disparate treatment and a hostile work environment.

In March 2007, the agency completed its investigation of the complaint,

and issued a final decision pursuant to 29 C.F.R. � 1614.110(b) on October

4, 2007. The decision concluded that complainant failed to prove that

she was subjected to discrimination as alleged.

CONTENTIONS ON APPEAL

Here, complainant, through counsel, requests that the Commission issue

an order reversing (vacating) the FAD, on the basis that the agency

improperly issued a FAD when the complaint was already pending before

an AJ.1 Complainant further asks the Commission to issue sanctions2

awarding complainant all attorney fees and costs related to the filing

of the instant appeal. In reply, the agency contends that the FAD

was properly issued as complainant has not presented evidence that she

submitted a request for a hearing on January 22, 2007, as she contends.

The agency asks the Commission to affirm the FAD.

ANALYSIS AND FINDINGS

Initially, we note that in its Opposition brief, while contending that

there is no proof that complainant requested a hearing in January 2007,

the agency concedes that that "the ROI in Hill Complaint #2 at page 3

'makes reference to the fact that the present complaint is 'currently

pending an EEOC hearing date.'" Additionally, the agency notes that in her

February 26, 2007 motion to consolidate the instant complaint with another

complaint before the same AJ, complainant stated that she requested a

hearing on January 22, 2007, which the agency submitted to this record.

Thus, despite the numerous indicators that the instant complaint may

properly be within an AJ's jurisdiction, the agency nevertheless completed

its report of investigation in March of 2007, forwarded it to complainant

shortly thereafter, and when complainant did not (at that point) request

a hearing, the agency issued a FAD on October 4, 2007.

After a careful review of the record, the Commission concludes that

the agency did not have jurisdiction to issue a final decision on this

complaint on October 4, 2007, as complainant had previously timely

exercised her right to request a hearing on or about January 22, 2007,

pursuant to 29 C.F.R. � 1614.108(g). We note that as this complaint is

currently under the AJ's jurisdiction, we shall not address complainant's

several requests for sanctions.

CONCLUSION

The Commission VACATES the agency's final decision and DIRECTS the agency

to submit the complaint file in accordance with this decision and the

ORDER below.

ORDER

The agency is directed to submit a copy of the complaint file in case

number 06JCS043 to the Hearings Unit of the Washington Field Office

within fifteen (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 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (M1208)

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), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 77960,

Washington, DC 20013. 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 (S0408)

You have the right to file a civil action in an appropriate United States

District Court within ninety (90) calendar days from the date that you

receive this decision. 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. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1008)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request from the Court that

the Court appoint an attorney to represent you and that the Court also

permit you to file the action without payment of fees, costs, or other

security. See Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,

29 U.S.C. �� 791, 794(c). The grant or denial of the request is within

the sole discretion of the Court. Filing a request for an attorney with

the Court does not extend your time in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

______9/17/09_____________

Date

1 Complainant has provided to the Commission a copy of the Certified Mail

Receipt, which shows that the agency received mail from complainant at

its address of record, on January 22, 2007.

2 The record indicates that complainant has also requested sanctions

for the agency's failure to complete the investigation of the complaint

within 180 days.

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0120080452

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120080452