Mindy W.,1 Complainant,v.Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionApr 11, 20180120160370 (E.E.O.C. Apr. 11, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy W.,1 Complainant, v. Robert Wilkie, Acting Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120160370 Agency No. 2003-0598-2015100775 DECISION On November 13, 2015, 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 October 20, 2015, 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 VACATES the Agency’s final decision and REMANDS the matter for a hearing in accordance with our order below. At the time of events giving rise to this complaint, Complainant worked as an Assistant Nurse Manager, GS-0610-12, at the Medical Center in Little Rock, Arkansas. On December 16, 2014, Complainant filed a formal complaint in which she alleged that the Agency subjected her to retaliatory harassment when: 1. On October 16, 2014, the Associate Nurse Executive for Medicine and Surgery informed Complainant that she would be marked absent without leave and could not be granted annual or sick leave; 2. On October 17, 2014, management officials failed to process Complainant’s Family Medical Leave Act request in a timely manner; and 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. 0120160370 2 3. On October 24, 2014, Complaint was only paid for 40 hours rather than 80 hours. In its final decision, the Agency noted that at the conclusion of the EEO investigation, it had notified Complainant in writing that she had the right to request either a hearing before an EEOC Administrative Judge (AJ), or an immediate final decision by the Agency without a hearing. According to the Agency, Complainant acknowledged receipt of that notice on June 22, 2015. The Agency noted that according to its review of the complaint file, Complainant had failed to respond to that notice. Accordingly, the Agency issued its final decision on the merits of the complaint pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to reprisal as alleged. CONTENTIONS ON APPEAL Complainant filed a short brief in conjunction with her notice of appeal in which she contended that the Agency had failed to send the notification of her right to request a hearing to the attorney she had retained as her designated representative. In so doing, Complainant argues, the Agency denied her the right to an administrative hearing before an AJ.2 ANALYSIS AND FINDINGS When the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant but time frames for receipt of materials shall be computed from the time of receipt by the attorney. 29 C.F.R. § 1614.605(d). Complainant’s attorney argued that she never received the notice. In support of her appeal contention, Counsel provided a copy of a notification dated February 16, 2015, that her law firm would be representing Complainant in Complaint No. 2003-0598-2015100775. Counsel also provided copies of email correspondence between herself and the EEO investigator that took place from April 1, 2015 through May 20, 2015. The notice of Complainant’s right to request a hearing is missing from the record. The Commission characterizes the request of a hearing following an investigation as a procedural matter. See e.g. Goolsby v. U.S. Postal Service, EEOC Appeal No. 01830156 (Nov. 9, 1983) (Appellant has raised an issue of the procedural regularity of the agency’s processing of her complaint; appellant’s representative contends that he did not receive notice of appellant’s right to a hearing). When an agency dismisses a case on procedural grounds, the burden of proof is on the agency to submit evidence supporting its dismissal. Hernandez v. Dept. of the Air Force, EEOC Appeal No. 01A45652 (Nov. 22, 2004) citing Diaz v. Dept. of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Therefore, the Agency has the burden to show that it had sent the notice of Complainant’s right to a hearing to her attorney. See e.g. Man H. v. Dept. of Veterans Affairs, EEOC Request No. 0520160487 (Feb. 16, 2017) citing Linn A. v. Social Security Administration, EEOC Appeal No. 0120161923 (Aug 19, 2016) (The agency has 2 Complainant subsequently submitted an appeal brief challenging the Agency’s finding of no discrimination on the merits. 0120160370 3 the burden of proof to support its dismissal of a complaint on procedural grounds). In view of the Agency’s failure to produce either the notice of Complainant’s right to request a hearing or documentation confirming that the notice was sent to Complainant’s attorney, we find that the Agency failed to meet its burden of proof on that issue. Consequently, we agree that the Agency never sent the notice to Complainant’s attorney as required by 29 C.F.R. § 1614.605(d). CONCLUSION Accordingly, the Commission VACATES the Agency’s final decision and REMANDS the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to submit a request to the Hearings Unit of the Houston District Office for scheduling of a hearing. The Agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within thirty (30) 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 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 (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. 0120160370 4 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. 0120160370 5 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 April 11, 2018 Date Copy with citationCopy as parenthetical citation