[Redacted], Cassey B.,1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 9, 2021

Appeal No. 2019004838 (E.E.O.C. Jun. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cassey B.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Request No. 2021000172 Appeal No. 2019004838 Hearing No. 510-2018-00124X Agency No. 200I-0573-2017104281 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Cassey B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019004838 (Sept. 24, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant, a GS-8 Registered Respiratory Specialist, filed an EEO complaint in which she alleged that the Agency discriminated against her on the bases of race (Hispanic), national origin (Puerto Rico, United States), and sex (female) when, on June 8, 2017, she was referred for consideration, but not selected, for the position of Supervisory Respiratory Therapist, GS-601/9, (Vacancy No. GF17RLD1943883). 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. 2021000172 2 Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). However, the AJ dismissed Complainant’s hearing request as a sanction for failure to show good cause for not appearing at the initial conference call. The Agency subsequently issued its final decision on the merits of the complaint, and Complainant appealed. In the appellate decision, the Commission found that the AJ erred in dismissing the hearing request. The record revealed that on March 13, 2019, the AJ issued the initial conference order to Complainant and her non-attorney representative informing them via email that the initial conference was scheduled for April 11, 2019. On March 19, 2019, the Agency followed up by issuing a notice with call-in details via the same email addresses. Neither Complainant nor her representative called in. The AJ immediately issued a show-cause order to Complainant notifying her that her failure to comply with the March 13 initial conference order could result in sanctions, including dismissal of her hearing request. Complainant responded through a different non-attorney representative on April 17, 2019. She explained that she never received either the March 13, 2019 initial conference order or the March 19, 2019 follow-up from the AJ. The certificates of service for both documents included an incorrect email address for Complainant. The AJ subsequently dismissed Complainant’s hearing request for failure to show good cause as to why she did not appear at the initial conference call, finding that Complainant had constructive notice since her non-representatives had received both notices. The Commission remanded the matter for a hearing after finding that Complainant had shown good cause for not following the AJ’s initial conference order and consequently, that sanctions against Complainant were not warranted. We agreed that both notices had been sent to an incorrect email address for Complainant and noted that the fact that Complainant’s non-attorney representatives had received the notices was not sufficient to establish constructive receipt of those documents by Complainant. The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9- 18 (August 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (August 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency argues that the Commission was responsible for the incorrect email addresses and that the previous decision limited the AJ’s inherent discretion by overriding her dismissal of Complainant’s hearing request. However, the Agency’s request fails to refute our finding that the email address listed for Complainant in the certificates of service for the March 13 and March 19 notices was incorrect. Likewise, the request does not address our finding that Complainant did not have constructive receipt of the notices. We remind the Agency that the dismissal of a hearing request is one of the harshest sanctions that could be meted out to a party. Hearing request dismissals are only appropriate under a narrow range of circumstances that include contumacious conduct or failure to exercise due diligence in pursuing a claim. Paul F. v. Dep’t of Homeland Security, EEOC Appeal No. 2019005369 (Feb. 25, 2021). 2021000172 3 Neither circumstance presented itself here. Ultimately, we find that the Agency has not presented any argument or evidence tending to establish the existence of either reconsideration criterion. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2019004838 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency is directed to submit a renewed request for a hearing, a copy of the complaint file, and a copy of this appellate decision to the EEOC Miami District Office within fifteen (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 hold a hearing on Complainant's claim of discrimination on the bases of race, national origin, and sex, 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 (K0719) 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. 2021000172 4 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 June 9, 2021 Date