[Redacted], Kyong L., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency.

Equal Employment Opportunity Commission

Aug 4, 2021

Appeal No. 2020003321 (E.E.O.C. Aug. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyong L.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 2020003321 Hearing No. 480-2019-00895X Agency No. FS-2018-00477 DECISION On October 28, 2019,2 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 December 11, 2019, final order 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. For the following reasons, the Commission VACATES the Agency’s final order and REMANDS the complaint for further processing. ISSUE PRESENTED The issue is whether the Administrative Judge properly dismissed Complainant’s hearing request. 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. 2 While we note that Complainant’s October 28, 2019 appeal was premature, the Commission finds that the appeal is now ripe for adjudication as the Agency subsequently issued a final order on December 11, 2019. 2020003321 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Fire Operations Specialist at the Agency’s Sequoia National Forest in Springville, California. On April 30, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and non-sexual harassment based on sex (female) and in reprisal for prior protected EEO activity when: 1. on March 5, 2018, Complainant’s second-line supervisor directed Complainant to perform higher level duties without proper training; 2. on January 30, 2018, Complainant’s second-line supervisor denied Complainant’s requests for staff ride classes, add-ons to her Red Card, and additional security in order to perform more assignments; and 3. on various dates, Complainant was subjected to several incidents of harassment including, but not limited to: a. on January 31, 2018, Complainant’s second-line supervisor inappropriately advised Complainant of delays in her Red Card; b. on February 8, 2018, Complainant’s first-line supervisor denied Complainant’s request to purchase exercise equipment and a private gym for her physical training; c. on March 6, 2018, management demeaned Complainant while discussing her participation in the March 2018 Public Broadcasting Station event during an all- employee meeting; d. on March 8, 2018, management accused Complainant of being “mean to her crew”; failing to interact with her coworkers; and trivialized her harassment claims as “in her head and imagining it”; and e. on March 16, 2018, as a result of the change of Complainant’s direct supervisor’s functions, Complainant was placed under another manager. 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 EEOC Administrative Judge (AJ). On or about October 29, 2018, Complainant sent her hearing request to the EEOC Los Angeles District Office, which received her request on November 5, 2018. 2020003321 3 When the Agency did not receive a copy of Complainant’s request for a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), it issued a final decision pursuant to 29 C.F.R. § 1614.110(b) on May 14, 2019. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.3 On September 30, 2019, the Agency filed a Notice of Final Agency Decision and Motion to Dismiss Hearing Request. The Agency stated that, while Complainant sent her hearing request form to the EEOC, she did not send a copy to the Agency. As such, the Agency issued a final decision on May 14, 2019. The Agency asserted that it notified Complainant that she might forfeit her hearing if she failed to provide her hearing request to the Agency, and that there was no evidence that Complainant sent a copy of her hearing request to the Agency. The Agency stated that Complainant’s failure to provide the Agency with notice of her hearing request rendered the request legally deficient and, therefore, ineffective in transferring jurisdiction of the instant EEO complaint to the EEOC. Accordingly, the Agency argued that it still had jurisdiction over the EEO complaint when it issued the final decision, and that Complainant’s insufficient hearing request should be dismissed. On October 28, 2019, Complainant filed the instant appeal, with a statement and additional documents in support of her appeal. On December 2, 2019, the Agency filed a supplement to its motion and submitted two declarations from Agency employees stating that the Agency did not receive a hearing request for the instant complaint. On December 9, 2019, the AJ issued an Order Dismissing Hearing Request. The AJ noted that Complainant did not respond to the Agency’s motion and did not dispute the Agency’s assertion that it did not receive her hearing request. The AJ added that the hearing request form adequately informed Complainant that she would not receive a hearing unless she sent her hearing request to both the EEOC and the Agency, and he found that dismissal of the hearing request was appropriate. The AJ ordered the Agency to process the matter per 29 C.F.R. §1614.110(b). The Agency issued a final order to fully implement the AJ’s decision on December 11, 2019. On June 3, 2020, the Agency filed an opposition brief to Complainant’s appeal.4 3 Complainant did not appeal the Agency’s final decision. 4 The Commission’s regulations provide that “any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.” 29 C.F.R. §1614.403(f). The Agency submitted its opposition brief on June 3, 2020, approximately six months past its deadline, and as such, we will not consider the arguments in the Agency’s opposition brief. 2020003321 4 CONTENTIONS ON APPEAL Through her non-attorney representative, Complainant argues that she sent her hearing request to the Agency. Complainant states that her representative mailed it via “postal mail” on November 19, 2018, and not certified mail, so there is no proof of delivery. Complainant also asserts that the Agency has “a history of making errors” in processing EEO complaints. With her appeal, Complainant submitted a declaration from her representative stating that she mailed Complainant’s hearing request form to the Agency, and documents related to other complainants’ EEO complaints. STANDARD OF REVIEW As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). ANALYSIS AND FINDINGS New evidence on appeal As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See Id. at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not previously available, nor any explanation as to why they were not provided to the AJ when the matter was before him. Accordingly, the Commission declines to consider this new evidence on appeal. Hearing Request EEOC regulations state that a “complainant shall send a copy of the request for a hearing to the agency EEO office.” 29 C.F.R. § 1614.108(h). In addition, failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. See Gallo v. Dep’t of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). An agency’s notice must be sufficient to put a complainant on notice that she risks forfeiting her right to a hearing if she does not notify the agency of her hearing request. Cerisano v. U.S. Postal Serv., EEOC Appeal No. 0120041629 (Dec. 15, 2006). 2020003321 5 Here, it is undisputed that Complainant was provided with sufficient notice regarding her obligation to send a copy of her hearing request to the Agency. On appeal, Complainant argued that her representative mailed her hearing request to the Agency on November 19, 2018. The Agency asserted that it did not receive notice of Complainant’s hearing request. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). An agency may provide evidence in the form of an affidavit from an agency official attesting to the fact that no hearing request from a complainant was received during the relevant time frame. See Val L. U.S. Postal Serv., EEOC Appeal No. 2020003599 (Apr. 5, 2021). In this case, the Agency provided declarations from two EEO Specialists stating that, due to the nature of their positions, they had access to information about hearing requests and that the Agency did not receive Complainant’s hearing request. Given these specific circumstances, we find that the Agency met its burden of providing evidence to support its claim that Complainant did not submit a copy of her hearing request to the Agency. Accordingly, we find that the AJ properly dismissed Complainant’s hearing request. However, here, following the remand by the AJ, the Agency issued a decision implementing the AJ’s decision dismissing the hearing. The Agency, however, should have issued a final decision on the merits of the claim, based on the AJ's order to issue a FAD.5 Further, we find that there was sufficient information in the record for the Agency to issue a decision on the merits. The Commission has held that as a general rule, an agency should not dismiss a complaint when it has sufficient information on which to base an adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (Aug. 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193 (Apr. 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998); Kroeten v. U.S. Postal Serv., EEOC Request No. 05940451 (Dec. 22, 1994). Therefore, under the circumstances of this case, we find that the Agency's dismissal of the complaint for Complainant’s failure to properly serve her hearing request to the Agency was improper. The Agency, in its final order, provides no explanation for its conclusion, simply stating it was adopting the AJ's decision. However, the Agency made no decision on the merits of the claims. 5 While the agency did issue an FAD in May 2019, this occurred while Complainant was still in the hearing stage and therefore we recognize that Complainant may have been confused as to why the Agency would issue an FAD while her hearing request was pending and not appealed this FAD at that time. 2020003321 6 In Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also, Gens v. Dep’t of Def., EEOC Request No. 05910837 (Jan. 31, 1992). Therefore, we remand the formal complaint to the Agency for a final decision on the merits. As such, we VACATE the Agency’s final order and REMAND the complaint to the Agency to re-issue a final decision addressing the merits of the complaint. 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 order and REMAND the complaint to the Agency for further processing in accordance with this decision and ORDER below. ORDER Within 30 days of the date this decision is issued, the Agency shall issue a new final decision addressing the merits of Complainant’s claims with appeal rights to the Commission. 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). Further, the report must include supporting documentation of the Agency’s issuance of the new final decision. 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. 2020003321 7 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. 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). 2020003321 8 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 August 4, 2021 Date