[Redacted], Helen W., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2020001463 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Helen W.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020001463 Hearing No. 420-2019-00166X Agency No. ATL-17-0679-SSA DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. On August 3, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability and in reprisal for prior protected EEO activity when: 1. During the periods April 2015 through April 2016, January 2017 through June 30, 2017, and October 27, 2017 through March 22, 2018 with respect to time and attendance, performance appraisals, management directives, Weingarten meeting, denied transfer request, disciplinary actions, and working conditions; and 2. On June 15, 2017, she was denied 3.25 hours of leave taken on June 14, 2017, under the Family Medical Leave Act (FMLA). 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. 2020001463 2 The Agency investigated the complaint and provided Complainant with a copy of the investigative report and notice of her right to request a hearing. On March 25, 2018, Complainant submitted a written request for a hearing, and in the same document sought to add allegations to her existing complaint. On April 26, 2018, the Agency notified Complainant that it had accepted her additional allegations and would process them accordingly. On September 20, 2018, Complainant received the combined initial and supplemental investigative reports for Agency No. ATL-17-0679-SSA. At this time, however, the Agency appeared not to have acknowledged Complainant’s hearing request, and on December 7, 2018, it issued a final decision in which it found no discrimination. At some point, however, Complainant’s hearing request was received by the Commission’s District Office in Birmingham, Alabama, and the matter was docketed as EEOC Hearing No. 420-2019-00166X on January 31, 2019. But, on October 9, 2019, the Administrative Judge (AJ) assigned to the case dismissed the request after finding that Complainant had never responded to the September 20, 2018 notice of her right to request a hearing that had accompanied the investigative reports. Complainant appealed the dismissal directly to the Commission. On February 20, 2020, the Agency filed a motion with the Commission to remand the complaint at issue in the above-referenced appeal due to what it characterized as a procedural error. The Agency stated that although Complainant submitted her request for a hearing on March 25, 2018, before she received the investigative reports, that request was not premature because 180 days had already elapsed from the date that she filed her complaint. See 29 C.F.R. § 1614.106(e)(2). The Agency noted that even though Complainant’s several amendments extended the time for the Agency to complete the investigations, the amendments did not affect the 180-day period by which Complainant could request a hearing. Even though the AJ dismissed the hearing request in October 2019, the Agency had already issued its final decision on the matter in December 2018, nearly a year before. While Complainant could have appealed the final decision directly to the Commission within 30 days of receiving it as required by 29 C.F.R. §1614.402, the Agency acknowledges that it had no authority to issue its final decision because Complainant had filed a timely hearing request which was received and docketed by the EEOC Hearings Unit. Under the specific circumstances of this case, and since the Agency is in agreement that there was a procedural error, the interests of justice would be best served by reinstating Complainant’s hearing request and remanding the matter for a hearing. The Commission therefore VACTES the final agency decision and REMANDS the matter for further processing in accordance with our Order below. ORDER The Agency is directed to submit a request for a hearing on behalf of Complainant to the EEOC Hearings Unit in the Commission’s District Office in Birmingham, Alabama within fifteen (15) calendar days of the date this decision becomes final. A complete copy of the complaint file, as well as a copy of this decision, shall accompany the hearing request. 2020001463 3 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. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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. 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. 2020001463 4 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. 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. 2020001463 5 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 March 8, 2021 Date