[Redacted], Joann F., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020002687 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joann F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020002687 Agency No. ARSIERRA17MAY01882 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 14, 2020, dismissing her complaint of unlawful 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. ISSUES PRESENTED The issue presented is whether the Agency properly notified Complainant of her right to request a hearing before an Administrative Judge (AJ). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Logistics Program Manager Assistant, GS-0344-07, at the Agency’s Industrial Base of Operations Directorate, Sierra Army Depot in Herlong, California. On July 13, 2017, Complainant filed a formal complaint, which was amended on March 13, 2018, alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (physical and mental), and 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. 2020002687 2 1. On an unidentified date, Complainant’s second-level supervisor (S2), failed to temporarily promote Complainant into a position she was already working in; 2. On May 23, 2017, Complainant became aware that S2 did not select her for the Logistics Management Specialist position under Schedule A Hiring Authority, even though she made the selecting list; 3. On June 21, 2017, she became aware that S2 revoked her previously approved training schedule, citing it was due to her not having enough time left on her term appointment to complete the training; and 4. On January 3, 2018, Complainant became aware that she was not selected for a Logistics Management Specialist, GS-0346-11, position advertised under announcement number WTDS176013214417D, although her name was on the referral listing. Following an investigation, the Agency stated that it provided Complainant a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC AJ. The Agency asserted that Complainant failed to request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f). Accordingly, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding that Complainant failed to prove that she had been discriminated against as alleged. CONTENTIONS ON APPEAL Complainant contends that the Agency improperly issued the final Agency decision. Specifically, Complainant avers that she did not receive notice of her right to request a hearing. In support, Complainant states that the Agency initially provided an incomplete ROI and the remaining documents were delivered to her minor son, however, neither package included the notice. Complainant further contends that the record requires additional development regarding witness credibility. Finally, Complainant argues that the Agency failed to provide an agreed upon explanation for her non-selections because management officials provided multiple reasons for her non-selections. The Agency argues that Complainant’s appeal is untimely.2 The Agency also argues that Complainant received notification of the option to select a hearing or a final Agency decision and references pages 59 through 62 of the ROI. 2 Although the Agency’s brief indicates that Complainant filed her appeal on April 8, 2020, more than 30 days after the February 14, 2020 final Agency decision, Complainant timely filed her appeal with the Commission on March 9, 2020. 2020002687 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(f) provides, in relevant part, that the agency shall provide the complainant with a copy of the investigative file, and shall notify the complainant, that within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an Administrative Judge or may request an immediate final decision from the agency with which the complaint was filed pursuant to 29 C.F.R. § 1614.110. Here, the Agency responds to Complainant’s allegation that she did not receive notice of her right to request a hearing by arguing that pages 59 through 62 of the ROI instructed Complainant that she could request a hearing or wait to receive a final Agency decision if no selection was made. However, we note that the section that the Agency references indicates that a future notice would be issued, as it states: “After completion of the investigation and if the case has not been settled, the EEO officer will provide you with the Notice of Post-Investigative Options and the investigative file. This notice will inform you that you have the right, within 30 calendar days from your receipt of the notice, to request a hearing before an EEO administrative judge, who will issue a decision subject to final action by the Army, or the right to request that a final Army decision be issued on the record. You may also request a hearing at any time after 180 calendar days have elapsed from the filing of this complaint.” (emphasis added). Upon review, the Commission is not persuaded that the Agency complied with the requirements of 29 C.F.R. §1614.108(f). We note that the ROI in the record does not include the Notice of Post-Investigative Options as argued by the Agency. The Case File provided by the Agency includes a copy of the letter, but the Agency has failed to provide persuasive evidence that the ROI provided to Complainant included such proper notice. Complainant’s appeal includes email correspondence, dated August 27, 2018, in which she inquired about her EEO complaint and expressed concern that her case had been forgotten because she had not heard anything in months. The Agency’s Complaints Manager responded that his records indicated that Complainant had received the ROI and a Post Instruction Options letter on May 29 and May 31, 2018. The Complaints Manager further explained to Complainant that because she did not respond in the allotted time, a final Agency decision would be issued. In response, Complainant questioned where the letter was in the binders that the Agency sent with the ROI. She further pointed out that she had informed the Agency that she only received the partial investigative record. Complainant reiterated that she never received the letter notifying her that she could elect a hearing. The email correspondence submitted by Complainant in support of her appeal establishes that Complainant had indeed wished to request a hearing. 2020002687 4 The Commission has repeatedly stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); See Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992). Therefore, in light of the confusion created by the Agency's errors in issuing the full ROI, the lack of a notice to request a hearing in the ROI, and in the interest of fairness, we find that Complainant's request for a hearing should be granted. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decision and REMAND this matter for a hearing in accordance with the Order below. ORDER Within 30 calendar days of the date this decision is issued, the Agency shall file a request for a hearing on behalf of Complainant with the Hearings Unit of the Commission's San Francisco District Office. The Agency is also directed to submit a copy of the complaint file, as well as a copy of this decision, to the Hearings Unit of the Commission's San Francisco District Office within 30 calendar days of the date this decision is issued. The Agency shall provide notification to the Office of Federal Operations via the Federal Sector EEO Portal as set forth below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 et seq. 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. 2020002687 5 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. 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. 2020002687 6 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. 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 September 21, 2021 Date