U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Earlie P.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2019004308 Hearing No. 450-2016-00132X Agency No. HSFEMA002692014 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 2019 final order concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Regional Insurance Specialist, GS 13 at the Agency’s Region 6 Mitigation Division, Floodplain Management and Insurance Branch in Denton, Texas. On January 17, 2014, Complainant filed a formal EEO complaint claiming that the Agency subjected her to a hostile work environment based on national origin (Hispanic), sex (female), 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. 2019004308 2 disability (mood disturbance, anxiety, and depression), age (over 40), and in reprisal for prior protected EEO activity. After an investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative (AJ) or a final decision from the Agency. According to the Agency, Complainant did not respond to the notice. On October 5, 2016, the Agency issued a final decision finding no discrimination. The final decision included a notice informing Complainant that she could appeal the decision to the EEOC Office of Federal Operations (OFO) within thirty days of receipt of the decision. The record indicates that on October 21, 2016, Complainant, through counsel, filed a Notice of Improper Issuance of Final Agency Decision to the Hearings Unit at the EEOC Dallas District Office (Hearings Unit) and the Agency’s Office of Equal Rights. Complainant asserted that contrary to Agency’s decision, she requested an administrative hearing on December 7, 2015. Subsequently, an EEOC AJ issued an Order for ADR Referral to Complainant and the Agency on June 1, 2017. On July 7, 2017, the Agency issued a motion to dismiss for lack of jurisdiction and failure to notify the Agency of a hearing request. Specifically, the Agency argued that Complainant failed to appeal its October 5, 2016 final decision, and Complainant failed to timely file a hearing request. On July 14, 2017, Complainant, through counsel, filed an opposition to the Agency’s motion. Complainant argued, in pertinent part, that she timely submitted her hearing request on December 7, 2015. Complainant provided evidence in support, including: (1) a copy of a December 7, 2015 letter from Complainant’s attorney to the Hearings Unit and the Agency indicating that Complainant was requesting a hearing and the completed hearing request was attached; (2) a copy of the completed hearing request form signed by Complainant on December 4, 2015, and her attorney on December 7, 2015; (3) a copy of the envelopes addressed to the Agency and the Hearings Unit with a December 7, 2015 postmark date on both envelopes; and (3) a December 7, 2015 fax confirmation sheet that the hearing request was submitted to “The Commission Hearings Unit.” On April 16, 2019, the AJ dismissed Complainant’s formal complaint finding that the Agency had already issued a final decision on the instant complaint and the AJ lacked jurisdiction. The AJ stated, in pertinent part, The above-captioned complaint is dismissed pursuant to 20 C.F.R. § 1614.109(b) because the record reflects that the Agency has already issued a final decision in this matter. To the extent that Complainant disagrees with the Agency’s action, the proper channel is to appeal the Agency’s final decision to the Commission’s 2019004308 3 Office of Federal Operations, which holds the exclusive authority to vacate an agency’s final decision, instead of by requesting relief in this forum. See 29 C.F.R. § 1614.110(b). On May 20, 2019, the Agency issued a final order implementing the AJ’s decision dismissing the complaint for lack of jurisdiction. The Agency further indicated that Complainant failed to request a hearing, and the record was “devoid of evidence” demonstrating that the Agency or the Hearing Unit received Complainant’s hearing request. Therefore, the Agency reasoned that it properly issued a final decision on October 5, 2016. The instant appeal followed. On appeal, Complainant, through counsel, argues, in pertinent part, that she requested an AJ hearing on December 7, 2015 and she provided evidence to support that she submitted the request to the Agency. Complainant requests that the Commission vacate the Agency’s order and remand her complaint for a hearing. ANALYSIS AND FINDINGS Given the specific circumstances of this case, we find that Complainant has produced sufficient evidence that she requested a hearing. Complainant has provided proof that her attorney mailed her hearing request on December 7, 2015 (postmark date) to the Agency and the Hearings Unit and her attorney also faxed the hearing request to the Hearings Unit on December 7, 2015. Consequently, Complainant’s hearing request was effectively filed on December 7, 2015, but the Agency waited ten months to issue a final decision on October 5, 2016. We acknowledge that Complainant did not appeal directly to OFO after the Agency issued its initial final decision on October 5, 2016, and it is unclear why Complainant failed to do so. However, the record indicates that on October 21, 2016, Complainant’s attorney notified both the Agency and the Hearings Unit that Complainant had requested a hearing on December 7, 2015. Consequently, the Agency had some indication that Complainant disputed the Agency’s statement that she had not elected a hearing as early as October 2016, well within the thirty-day deadline to appeal the Agency’s decision. However, the Agency waited approximately eight months to contact OFO on June 20, 2017 to inquire whether Complainant had filed its October 5, 2016 final decision. We note that the AJ properly determined that he lacked jurisdiction to in the instant complaint because the Agency had already issued a final decision at the time the complaint was before the AJ. Because we find that Complainant has provided sufficient documentation that she filed a hearing request and informed the Agency that she had filed hearing request, we determine that the Agency’s issuance of the October 5, 2016 FAD and the Agency’s subsequent May 20, 2019 final decision implementing the AJ’s dismissal was in error. 2019004308 4 The Agency’s October 5, 2016 and May 20, 2019 final decisions are VACATED. This matter is REMANDED to the Agency, for submission to the appropriate Hearings Unit, as detailed in the ORDER below. ORDER The Agency shall submit to the Hearings Unit of the EEOC’s Dallas District Office a request for hearing on Complainant’s behalf within fifteen (15) calendar days of the date this decision is issued. The Agency is directed to submit a copy of the complaint file, as well as a copy of this appellate decision, to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. 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 process 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. 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. 2019004308 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. 2019004308 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 January 6, 2021 Date
