[Redacted], Helen B., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Aug 31, 2021

Appeal No. 2020001441 (E.E.O.C. Aug. 31, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020001441 Hearing No. 530-2015-00268X Agency No. BOP-2014-0126 DECISION On December 17, 2019, 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 November 22, 2019 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the matter for a hearing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Education, GS-1710-13 at the Agency’s United States Penitentiary (USP) in Canaan, Pennsylvania. On January 22, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African American), sex (female), age (53), and in reprisal for prior protected EEO activity when: 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. 2020001441 2 1. from May 2013, to January 2014, Complainant was subjected to a racial slur by a co-worker, a subordinate displayed inappropriate and unprofessional behavior toward her, and a co-worker displayed photographs that were derogatory toward African-Americans and members of the LGBTQ community in common areas, and management tolerated such behavior; 2. on December 2, 2013, the Agency did not select Complainant for the position of Associate Warden (AW) anywhere in the country under Vacancy Announcement No. MSS-2013-0007; 3. on January 23, 2014, the Agency did not place her on the best qualified (BQ) list to select her for an AW position under the nationwide vacancy announcement MSS- 2014-0002; 4. from May 2014, to June 2014, management at USP Canaan disclosed her medical documentation to her Education Department employees, co-workers gave her menacing looks, the Warden refused to attend a graduation ceremony for an inmate vocational program, and the Warden asked her when she was going to retire; 5. on September 9, 2014, Complainant was not selected for an AW position under the nationwide Vacancy Announcement No. MSS-2014-0012; and 6. on September 30, 2014, Complainant was not selected for the position of Supervisor of Education at the United States Penitentiary in Thompson, Illinois under Vacancy Announcement No. NCR-2014-0288. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter scheduled an Initial Status Teleconference for May 16, 2018. Complainant failed to appear for the teleconference. On May 16, 2018, the AJ issued a Show Cause Order for Complainant’s failure to appear. On July 2, 2018, the AJ dismissed Complainant’s hearing request and remanded the complaint to the Agency for a final decision. His reasons for doing so were set forth as follows: By Order of May 16, 2018, Complainant was Ordered to Show Cause, in writing and with detail, within ten (10) days of the date of the Order (copying Agency counsel), why an appropriate sanction should not be levied for her default in not proceeding with the Ordered scheduled May 16 teleconference. Complainant failed to respond to the May 16 Order to Show Cause in any way. 2020001441 3 On November 22, 2019, the Agency issued a final decision finding that Complainant was not subjected to discrimination or reprisal as alleged. On appeal, Complainant argues that she never received notice about the Initial Status Teleconference and did not receive the AJ’s order to show cause why she failed to appear. The record demonstrates that the AJ directed all correspondence to Complainant at an address in Waymart, Pennsylvania. A review of Complainant’s request for a hearing demonstrates that the Waymart address belongs to the Agency’s facility therein. The record indicates that Complainant received correspondence at several addresses but never in Waymart. At the time of the hearing, Complainant was retired from service and the Agency corresponded with Complainant at a different address in a different state throughout the record, and that is the address to which the Agency sent its final decision. Before sanctions are imposed, the Commission requires the AJ to issue an Order to Show Cause to the offending party that makes clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with an order unless the party can show good cause for that failure. See Mitskog v. Dep’t of Justice, EEOC Request No. 2019002953 (Jan. 28, 2020). Under the circumstances in the present case, the Commission finds that the AJ erred in dismissing Complainant’s hearing request as Complainant has established that she did not receive the AJ’s orders and therefore had no notice that the hearing request could be dismissed. Accordingly, the Commission VACATES the Agency's final decision and REMANDS the matter to the Agency for further action in accordance with this decision and the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the Philadelphia District Office of the EEOC 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 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. 2020001441 4 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020001441 5 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 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. 2020001441 6 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 August 31, 2021 Date