Phoebe O.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Oct 12, 2018

0120181078 (E.E.O.C. Oct. 12, 2018)

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

Phoebe O.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.

Appeal No. 0120181078
Agency No. APHIS-2017-00391

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated January 5, 2018, dismissing her complaint of
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. For the following reasons, the
Commission VACATES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Veterinary Medical
Officer, GS-0701-12 with the Agency’s National Import Export Services, Veterinary Services, in
Austin, Texas. On March 22, 2017, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination and harassment on the basis of disability when:

1. On March 9, 2017, her supervisor gave her a final Performance Appraisal rating
in areas and categories that had previously been removed from her duties;
2. On February 7, 2017, her supervisor accused her of not meeting the critical
elements of her job;
3. On January 27, 2017, her supervisor sent her an email denying her ability to
participate in the Aquaculture American 2017 Conference (Conference), in which
she was supposed to serve as a presenter;

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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4. On several dates, she was subjected to various acts of harassment, including but
not limited to:
a. On unspecified dates in January 2017, Complainant’s supervisor asked her
staff about the activities she participates in and her intentions of said activities;
b. On December 9, 2016, her supervisor denied her Family and Medical Leave
Act (FMLA) requests, and her sick leave requests;
c. On December 6, 2016, her supervisor notified her of the removal of her
supervisory duties, without reasoning or feedback;
d. On October 21, 2016 and October 28, 2016, her supervisor denied her
reasonable accommodation requests; and
e. On unspecified dates, her supervisor required her to work on days she took
sick leave.

The record reveals an investigation into Complainant’s complaint was conducted from March 29,
2017, through October 17, 2017. The investigator submitted the Report of Investigation (ROI) to
the Agency on October 18, 2017. The Agency issued the ROI on October 25, 2017. At the
conclusion of the investigation, the Agency provided Complainant with a copy of the Report of
Investigation (ROI) and Notice of her right to request a hearing before an EEOC Administrative
Judge (AJ).

On January 5, 2018, the Agency issued a final decision on the merits of the complaint, finding no
discrimination. Therein, the Agency noted that, following receipt of the ROI, Complainant had
30 days within which to request a hearing before an AJ or a final Agency decision. The Agency
noted, however, that as Complainant failed to request either a hearing or a final Agency decision
without a hearing, it issued its decision finding no discrimination in accordance with 29 C.F.R.
§1614.110.

On appeal, Complainant claims that she timely requested a hearing with the Commission’s
Dallas District Office prior to the Agency’s issuance of its final decision. Complainant notes she
mailed her hearing request to the EEOC’s Dallas District Office and the Agency via certified
mail on November 22, 2017. Complainant provides evidence that she sent her hearing request to
the Agency’s Office of Adjudication Employment Division, the Agency’s Counseling and
Resolution Branch, and to the EEOC’s Dallas District Office by postmark November 22, 2017.
Complainant provides evidence that the election form was received by the Counseling and
Resolution Branch and the EEOC Dallas District office on November 24, 2017. Complainant
presents evidence that the election form was received by the Office of Adjudication Employment
Investigations Division on November 27, 2017.

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ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.109(a) provides, in pertinent part:

When a complainant requests a hearing, the Commission shall appoint an administrative
judge to conduct a hearing in accordance with this section. Upon appointment, the
administrative judge shall assume full responsibility for the adjudication of the complaint,
including overseeing the development of the record.

In the present case, we note that in response to Complainant’s appeal, the Agency does not
challenge Complainant’s assertion that she timely filed a hearing request with the EEOC’s Dallas
District Office prior to the Agency’s issuance of its January 5, 2018 final decision. The EEOC’s
case tracking system reflects that the instant case, Agency No. APHIS-2017-0391, has been
assigned to an AJ under EEOC Hearing No. 450-2018-00076X and the matter is still pending.

CONCLUSION

Accordingly, it is the decision of the Commission to VACATE the final Agency decision and
REMAND the complaint to the Agency for further processing in accordance with the ORDER
herein.

ORDER

If it has not already done so, the Agency shall submit a copy of its complaint file to the Hearings
Unit of the Dallas District Office within 30 days from the date this decision is issued. The
Agency shall provide written notification to the Compliance Officer at the address set forth
herein that the complaint file has been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall hold a hearing and 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 (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.

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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).
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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

October 12, 2018
Date