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

Equal Employment Opportunity Commission

Feb 17, 2022

Appeal No. 2020002687 (E.E.O.C. Feb. 17, 2022)

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. Request No. 2022000236 Appeal No. 2020002687 Agency No. ARSIERRA17MAY01882 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020002687 (Sept. 21, 2021). 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). The Agency’s request for reconsideration is DENIED. 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 alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (physical and mental), 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. 2022000236 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 learned 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, Complainant learned that S2 revoked her previously approved training schedule, claiming that Complainant did not have enough time left on her term appointment to complete the training; and 4. on January 3, 2018, Complainant learned that she was not selected for a Logistics Management Specialist (GS-0346-11) position, advertised under vacancy 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 Administrative Judge. The Agency asserted that Complainant failed to request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f). The Agency issued a final agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b), finding that Complainant failed to prove that she had been discriminated against as alleged. Complainant appealed the FAD to the Commission, and argued that the Agency improperly issued the decision because she did not receive notice of her right to request a hearing. Complainant averred that the Agency initially provided an incomplete ROI and the remaining documents were delivered to her minor son; however, neither package included the notice. On September 21, 2021, the Commission vacated the Agency’s final decision and remanded the complaint. The Commission found that the Agency failed to offer persuasive evidence that the ROI provided to Complainant included proper notice of her right to request a hearing. Further, the record contained email evidence that Complainant questioned where the letter was in the materials that the Agency sent with the ROI, and she also alerted 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. Accordingly, the Commission ordered the Agency to vacate its final decision and submit a hearing request, on Complainant’s behalf, to the appropriate EEOC office. Joann F. v. Dep’t of the Army, EEOC Appeal No. 2020002687 (Sept. 21, 2021). On October 18, 2021, the Agency filed a request for reconsideration of the appellate decision. The Agency asserts that a copy of the complete investigative file was delivered to Complainant’s address on May 31, 2018. The Agency notes that, in the “Post Investigation Options” letter, the Agency informed Complainant of her right to elect a hearing. 2022000236 3 Since the Complainant did not elect a hearing, it issued the final decision. The Agency requests that the Commission reconsider its decision. Complainant did not submit a brief in response to the Agency’s request. ANALYSIS AND FINDINGS 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. Even crediting the Agency’s assertion that its mailing was delivered to Complainant on May 31, 2018, the Agency provided no evidence proving that this package was a complete ROI, or that it contained the “Post Investigation Options” letter. As noted in the prior appellate decision, the record contained evidence that Complainant informed the Agency that she did not receive the “Post Investigation Options” letter. Specifically, on August 28, 2018, Complainant emailed the Agency and asked where the letter was within the “3 big black books” because she never saw it. A Complaints Manager responded, “I can’t say where the letter is,” and he attached a copy of the letter to his email response. Complainant Appeal Brief Attachment at 5-6. Complainant replied to the Complaints Manager and averred that she “was never notified (even if [Complainant] did not respond).” In response, the Complaints Manager stated: [n]ot sure what you are attempting to convey. However, I assume you mean that you were not notified of either the request for a FAD or the final decision. Consequently, I will address both. Regarding the FAD request the letter states ‘If you do not respond within 30 calendar days of receipt of this letter, the Army Director of EEO, or designee, will render a decision on the record as it stands.’ The letter is the notification. Regarding notice of the decision. That has not happened yet. As I explained previously, it will take about 6 months to get a written response from Army. There is a serious backlog due to the number of complaints. Id. We note that, in the Complaints Manager’s initial response to Complainant, he cannot confirm that the “Post Investigation Options” letter was sent to Complainant with the ROI. We further find that the Complaints Manager’s subsequent response made no mention of Complainant’s right to request a hearing, and he simply informed her that the Agency would issue a final decision, despite Complainant’s communication that she did not previously receive the “Post Investigation Options” letter. 2022000236 4 The Agency did not provide any evidence to challenge Complainant’s assertion that she did not receive a copy of the “Post Investigation Options” letter prior to August 28, 2018, at which point, the Complaints Manager told Complainant that she needed to wait approximately six months for a final decision. We find that the Agency effectively deprived Complainant of an opportunity to request a hearing before an EEOC AJ. As such, the Agency has not met its burden to show that the appellate decision involved a clearly erroneous interpretation of material fact or law. The Agency’s request for reconsideration is hereby DENIED. The decision in EEOC Appeal No. 2020002687 remains the Commission’s decision. There is no further right of administrative appeal on the decision of the Commission. The Agency shall comply with the Order as set forth 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. 2022000236 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. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. 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 February 17, 2022 Date