Michael D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120170108 (E.E.O.C. Oct. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Michael D.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120170108

Hearing Nos. 430-2016-00190X,
430-2016-00450X

Agency No. 2004-0652-2015103882

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s final decision dated August 25, 2016, concerning his complaint
of unlawful 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission VACATES the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency’s issuance of a final decision after referring the matter
for an administrative hearing before an Equal Employment Opportunity Commission (AJ) was
appropriate.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance Worker,
WG-4749-8, at the Agency’s Richmond, Virginia VA Medical Center (VAMC). On July 8, 2015,

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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Complainant filed a formal complaint, which he subsequently amended on November 10, 2015,
alleging that the Agency subjected him to discrimination on the bases of race (African-American),
disability (hearing loss, ankle injury, and back injury), and reprisal for prior protected EEO activity
when:

1. On April 17, 2014, Complainant was not selected for a Maintenance Mechanic
position advertised under vacancy announcement number VHA-652-14-MVM-
1016950;

2. In June 2014, Complainant was not selected for Maintenance Mechanic positions
advertised under vacancy announcement numbers VHA-652-14-MVM-1091161
and VHA-652-14-NVM-1090377-BU;

3. On September 14, 2014, a supervisor indirectly called Complainant “Buckwheat”;

4. On June 11, 2015, a Human Resources employee refused to provide Complainant
with the status of the selection for the Maintenance Mechanic position advertised
under vacancy announcement number VHA-652-15-MVM-1321753-BU;

5. On June 8, 2015, Complainant learned that he was not selected for a Maintenance
Mechanic position advertised under vacancy announcement number VHA-652-15-
MVM-1322213-BU;

6. On June 8, 2015, Complainant learned that he was not selected for a Maintenance
Mechanic position advertised under vacancy announcement number VHA-652-15-
MVM-1321753-BU; and

7. On October 20, 2015, the Chief of the Engineering Service did not select
Complainant for the position advertised under vacancy announcement number
ANS-15-DKO-1500447-BU.

The Agency dismissed claims 1 through 3 pursuant to 29 C.F.R. § 1614.107(a)(1) for raising the
same claims as Agency No. 2004-0652-2015100598. On January 19, 2016, during the
investigation into accepted claims 4 through 7, Complainant requested a hearing before an EEOC
AJ. The matter was docketed as Hearing No. 430-2016-00190X. On March 4, 2016, the AJ
assigned to the case dismissed the hearing request as premature because less than 180 days had
passed since the most recent amendment to the complaint. According to the record, the Hearings
Unit mailed a copy of the March 4, 2016, Order Dismissing Hearing Request to Complainant’s
representative by first class mail but did not send a copy to Complainant.

On July 22, 2016, the Agency forwarded a copy of the Investigative File to the Commission’s
Charlotte District Office, and the Hearings Unit docketed the matter as 430-2016-00450X. The
Agency uploaded the complaint file electronically on July 26, 2016.
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On May 23, 2017, the Agency filed a motion with the AJ assigned to the case, arguing that the
matter should be dismissed for lack of jurisdiction. According to the motion, the Agency
mistakenly referred the matter to the Commission for a hearing in July 2016. According to the
Commission’s records, this matter is still pending before an AJ in the Charlotte District Office,
and no ruling has been made on the Agency’s motion to dismiss for lack of jurisdiction.

On August 25, 2016, the Agency issued a final decision finding no discrimination. According to
the Agency’s final decision, on March 2, 2016, Complainant acknowledged receipt of notice of
the right to request a hearing before an EEOC AJ or an immediate final decision, and Complainant
failed to respond within the prescribed time. The final decision states that on May 16, 2016, the
Agency forwarded the complaint file to the Agency’s Office of Employment Discrimination
Complaint Adjudication (OEDCA) for an immediate final decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that neither he nor his representative received the AJ’s March
4, 2016, order dismissing his hearing request. According to Complainant, he did not submit an
additional hearing request upon receipt of the March 2, 2016, notice because he believed that his
original hearing request was already pending.

In response to Complainant’s appeal, the Agency contends that its final decision finding no
discrimination should be affirmed because Complainant failed to request a hearing after receipt of
the notice on March 2, 2016.

ANALYSIS AND FINDINGS

The record establishes that this matter is currently pending in the Hearings Unit of the EEOC’s
Charlotte District Office and that this matter was already pending there when the Agency issued
its final decision. Therefore, the Agency did not have jurisdiction to issue a final decision in this
case and did so erroneously. Accordingly, we will vacate the Agency’s final decision and remand
the complaint to the Commission’s Charlotte District Office in accordance with the Order below.
See Mana H. v. Dep’t of the Navy, EEOC Appeal No. 0120171311 (April 27, 2018). We note that
we are remanding this matter to the Hearings Unit without making a determination as to whether
Complainant’s hearing request is properly before an AJ.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that the Agency erroneously issued a final decision in
Agency No. 2004-0652-2015103882. Accordingly, we VACATE the final decision and
REMAND the matter to the Agency for further processing in accordance with this decision and
the ORDER below.

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ORDER

To the extent that it has not already done so, within fifteen (15) calendar days of the date this
decision is issued, the Agency shall submit to the Hearings Unit of the EEOC’s Charlotte District
Office a request for a hearing, a copy of this decision, and a copy of the complaint file. The Agency
shall provide written notification to the Compliance Officer according to the method 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.
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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.
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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

October 24, 2018
Date