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

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020000646 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence G.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2020000646 Agency No. HQ-18-0964-SSA DECISION On October 22, 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 October 3, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Information Technology Specialist, Grade GS-12, at the Agency’s Office of Systems Architecture, Division of Enterprise, Software, Engineering and Infrastructure, Local Area Network Services Branch in Baltimore, Maryland. On December 10, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), disability, and age (66) when: 1. On July 8, 2018, Complainant was placed on a 7-day suspension; 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 2020000646 2. From December 2017 to July 8, 2018, and continuing, Complainant was denied a reasonable accommodation; 3. From June 24, 2018, and ongoing, the Agency subjected Complainant to harassment in terms of being charged with being absent without leave (AWOL); and 4. From July 9, 2018 to November 21, 2018, the Agency subjected Complainant to disparate treatment when he was placed on AWOL at various times. On May 30, 2019, following the conclusion of its investigation, the Agency provided Complainant and his attorney with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant mailed a notice of his right to request a hearing that was received on June 24, 2019, in the Commission’s Baltimore Field Office. On July 26, 2019, the Agency sent a copy of the report of investigation to Complainant’s new counsel. On October 4, 2019, the Agency issued the instant final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. In its final decision, the Agency stated that it had not received a request for a hearing from Complainant within the time frame provided in 29 C.F.R. § 1614.108(f). The instant appeal followed. On appeal and through counsel, Complainant contended that he had timely sent the Agency a copy of the notice of right to file an appeal “first class postage, prepaid to the Agency.” Complainant’s appellate brief argued that the hearing request was timely sent to both the Agency and EEOC’s field office in Baltimore, and that therefore, the Agency had issued its final decision improperly before he was afforded the requested hearing. Complainant further asserted that on June 10, 2019, he had notified the Agency that he had a new attorney and confirmed his request for a hearing before an AJ. Complainant’s legal representative requested the Agency’s final decision reverse and remand to an EEOC AJ for a hearing. The Agency argued that its final decision should be affirmed as proper because Complainant had failed to send a copy of the request for a hearing to the Agency. In support of this position, the Agency included a sworn statement from its Office of Civil Rights and Equal Opportunity, wherein an EEO Specialist testified that neither Complainant nor EEOC had sent notification of the request for a hearing to the Agency. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.108(f), after receiving the investigative file and notice of the right to request a hearing before an EEOC AJ, a complainant may do so within 30 days. 29 C.F.R. § 1614.108(h) provides that a complainant may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the Agency’s transmittal letter. 29 C.F.R. § 1614.108(h) also instructs complainants to send a copy of the request for a hearing to the Agency 3 2020000646 EEO office. Within 15 days of receipt of the request, the agency’s EEO office must provide a copy of the complaint file to EEOC and the complainant. In the present matter, it is undisputed that Complainant’s request for a hearing was received at the appropriate EEOC office no later than June 24, 2019. Complainant has stated that he also mailed a copy of his hearing request to the Agency timely after receiving the Agency’s investigative file. The Agency denied it received timely notice of a hearing request (from Complainant or EEOC) at any time before October 4, 2019, when it issued its finding of no discrimination in the final decision. 29 C.F.R. § 1614.108(h) directs complainants to send a copy of the request for hearing to the Agency and we have consistently held that failure to courtesy copy the Agency may render a hearing request legally ineffective for purposes of transferring jurisdiction of the complaint to the EEOC for a hearing. Gallo v. Dep’t of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). However, we have also upheld hearing requests where the Agency's notice insufficiently warned Complainant that he can forfeit the right to request a hearing by neglecting to send a copy of the request to the Agency in addition to EEOC. Pearsey v. Dep’t of Veteran Affairs, EEOC Appeal No. 0120103636 (April 19, 2012). See also Fawn G. v. Dep’t of the Navy, EEOC Appeal No. 0120151450, (Nov. 22, 2017). A careful reading of the Agency’s May 30, 2019 notice of procedural rights revealed that it did not clearly explain that failing to send a copy of his hearing request to the Agency would negate the hearing request that he had sent to EEOC. Based on evidence that Complainant timely filed a hearing request with the EEOC, his representation that he also sent a copy to the Agency, and the fact that the Agency’s notice did not contain adequate warning that a failure to send the Agency the copy of his hearing request could negate that request, we find the Agency improperly issued a final decision without a hearing. CONCLUSION We thoroughly reviewed entire record and all contentions on appeal, including those not specifically addressed herein. Based on the foregoing discussion, the Commission VACATES the Agency’s October 3, 2019 final decision. This matter is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) Within fifteen (15) calendar days of the date this decision is issued, the Agency shall, on behalf of Complainant, renew his request for a hearing by sending a hearing request, the complaint file, and a copy of this decision to the EEOC Hearings Unit of the Baltimore Field Office. Thereafter, the Commission’s AJ assigned to the case shall process the complaint in accordance with 29 C.F.R. § 1614.109. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the hearing request and complaint file has been transmitted to the Hearings Unit. 4 2020000646 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. 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 Complainant and his representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, 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 Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 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 (OSC) pursuant to 29 C.F.R. § 1614.503(f) for OSC enforcement. 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. 5 2020000646 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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. 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). 29 C.F.R. § 1614.403(g). Either party’s request 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. 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. 6 2020000646 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 9, 2021 Date