Maxima R.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 9, 20180120171171 (E.E.O.C. Nov. 9, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maxima R.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120171171 Agency No. 200I-0508-2015-105179 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 23, 2017, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented is whether Complainant was improperly denied a hearing before an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Technician within Logistics Service at the Agency’s Medical Center facility in Decatur, Georgia. On September 25, 2015, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 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. 0120171171 2 1. On August 6, 2015, the Chief of Logistics (Chief) and Assistant Chief of Logistics (S3) issued Complainant a 30-day notice to inform her that she would be returning to work a normal tour of duty, from 8:30 a.m. to 4:30 p.m.; 2. During a meeting on August 7, 2015, the Chief called the Agency Police after accusing Complainant of raising her voice and becoming hostile toward her; 3. On August 24, 2015, the Supply Management Officer (S1) told Complainant to send him an email each day to inform him when she arrives at work; 4. On September 8, 2015, in response to Complainant’s request to work available overtime on the weekend shift, S1 indicated that he would only approve her request if she provided him a letter stating she “no longer had religious reservations with working on the weekend;” 5. On September 11, 2015, S1 denied Complainant’s request to maintain the “temporary” schedule she had previously been working to accommodate her child care needs, while a male employee indicated his schedule was changed for the same reason; 6. On September 21, 2015, Complainant was issued a proposed 14-day suspension; 7. On September 23, 2015, Complainant was informed she would be reassigned from the Operating Room (OR) to be the primary backup for the Program Support Assistant; 8. On November 3, 2015, Complainant was informed the charges in the proposed suspension were sustained, and as a result, the decision was made to suspend her for seven calendar days, effective November 9 through 15, 2015; 9. On December 1, 2015, after Complainant left early due to an “acute exacerbation flare-up” of asthma, S1 told her he would write her up if she did not present a doctor’s note; 10. On December 17, 2015, S1 abruptly made Complainant feel undermined and uncomfortable when he addressed her for missing a mandatory meeting; 11. By memorandum dated March 10, 2016, Complainant was issued a proposed 14- day suspension; and 12. By memorandum dated April 22, 2016, Complainant was notified that the charge outlined in the proposed suspension was sustained, and as a result, the decision was made to mitigate the proposed 14-day suspension to a 10-day suspension. 0120171171 3 After 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to harassment or discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant maintains that the she and her representative did not receive notification of her right to request a hearing. Consequently, Complainant requests that the Commission grant her the opportunity to have her case heard before an AJ. The Agency contends that Complainant’s brief is untimely and requests that we affirm its final decision finding that Complainant did not prove she was subjected to unlawful discrimination or harassment. ANALYSIS AND FINDINGS The Agency contends that Complainant’s brief is untimely. According to EEO regulations, any statement or brief on behalf of a complainant must be submitted to the Commission within 30 days of filing the notice of appeal. 29 C.F.R. § 1614.403(d). In this case, Complainant filed her appeal on February 8, 2017. Complainant then filed her brief with the Commission on March 8, 2017, or 28 days after filing her appeal. Consequently, we find that Complainant timely filed her brief. Complainant contends that the Agency did not provide her with notice of her right to request a hearing. We note that EEO regulations provide that agencies shall provide complainants with a copy of the investigative file and notify them that they have the right to request a hearing and decision from an AJ or a final agency decision. 29 C.F.R. § 1614.108(f). In this case, the record reveals that the Agency sent a July 7, 2016 letter to Complainant’s address of record advising her of her right to request a hearing. Parcel tracking information reveals that the letter was delivered to an “office” on July 15, 2016. However, there is no evidence that Complainant received the notice, such as a copy of Complainant’s signature acknowledging receipt of the notice. Moreover, Complainant contends that she did not receive the notice, which the Agency does not rebut with any contradictory evidence. Thus, in the interest of fundamental fairness and preservation of EEO rights, and because of the lack of persuasive evidence establishing that Complainant received notice of her right to request a hearing, we find that Complainant’s complaint should be remanded for a hearing. See Gaye A. v. Dep’t of Agriculture, EEOC Appeal No. 0120161205 (May 23, 2018) (In the interest of fairness and preservation of EEO rights, case remanded for a hearing where Complainant contended that the Agency wrongfully issued a final decision although she requested a hearing before an AJ). 0120171171 4 CONCLUSION Accordingly, the Commission VACATES the Agency’s final decision and REMANDS this matter to the Agency for a hearing. ORDER The Agency shall submit to the Hearings Unit of the EEOC Atlanta District Office a request for a hearing within 15 calendar days of the date this decision is issued. 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 is issued. 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 (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). 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. 0120171171 5 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. 0120171171 6 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 November 9, 2018 Date Copy with citationCopy as parenthetical citation