[Redacted], Mindy W., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionSep 2, 2021Appeal No. 2020003067 (E.E.O.C. Sep. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mindy W.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003067 Hearing No. 490-2020-00003X Agency No. 2003-0598-2015100775 DECISION On March 23, 2020, 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 February 20, 2020, final decision 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 decision and REMANDS the matter for a hearing in accordance with our order below. ISSUE PRESENTED The issue presented herein is whether the EEOC Administrative Judge (AJ) erred when dismissing 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. 2020003067 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Assistant Nurse Manager, GS-0610-12, at the Medical Center in Little Rock, Arkansas. On November 17, 2014, Complainant contacted an EEO Counselor and filed a formal EEO complaint on September 16, 2014, alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. on October 16, 2014, the Associate Nurse Executive for Medicine and Surgery informed Complainant that she would be marked absent without leave and could not be granted annual or sick leave; 2. on October 17, 2014, management officials failed to process Complainant’s Family Medical Leave Act (FMLA) request in a timely manner; and 3. on October 24, 2014, Complainant was only paid for 40 hours rather than 80 hours. On October 20, 2015, the Agency issued a final decision. In its final decision, the Agency noted that at the conclusion of the EEO investigation, it had notified Complainant in writing that she had the right to request either a hearing before an EEOC Administrative Judge (AJ), or an immediate final decision by the Agency without a hearing. According to the Agency, Complainant acknowledged receipt of that notice on June 22, 2015. The Agency noted that according to its review of the complaint file, Complainant had failed to respond to that notice. Accordingly, the Agency issued its final decision on the merits of the complaint pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to reprisal as alleged. On November 13, 2015, Complainant filed an appeal with the EEOC’s Office of Federal Operations. Complainant contended that the Agency had failed to send the notification of her right to request a hearing to the attorney she had retained as her designated representative. In so doing, Complainant argued, the Agency denied her the right to an administrative hearing before an AJ. In Mindy W. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160370 (Apr. 11, 2018), we found that the Agency had not met its burden of proof showing that Complainant's attorney had been served with notice of Complainant's right to request a hearing. Accordingly, we vacated the Agency’s final decision and remanded the matter to the Agency for submission to the EEOC's Hearings Unit. On October 1, 2019, the Agency submitted the investigative file to the EEOC's Memphis District Office. An Initial Conference was conducted on November 21, 2019. The Order setting the Initial Conference specifically notified Complainant that failure to prepare and participate could result in sanctions, of which dismissal of the hearing request is one. 2020003067 3 Complainant failed to appear for the initial conference by telephone, as Complainant allegedly refused to join the Initial Conference without her attorney. On December 5, 2019, the AJ assigned to the case issued an Order Dismissing Complainant’s Hearing Request and returned the matter to the Agency for issuance of a Final Agency Decision (FAD). The AJ's Order stated that Complainant had refused to participate in the November 21, 2019, Initial Conference and, as of December 5, 2019, Complainant had not contacted the AJ nor had any attorney entered an appearance on behalf of Complainant. The Agency issued a FAD on February 20, 2020. The Agency’s FAD addressed all of Complainant’s allegations. The Agency concluded that Complainant had failed to establish that any of the alleged management actions was linked to Complainant’s prior EEO activity. CONTENTIONS ON APPEAL On Appeal, Complainant argues that the Agency failed to properly serve Complainant and her counsel with the AJ’s order scheduling the initial conference even though the Agency was aware that Complainant is represented by a designated counsel. Complainant requests a reversal of the FAD and the AJ’s order dismissing her request. In its Appeal Brief, the Agency asserts that Complainant was provided a copy of the initial conference by email. ANALYSIS AND FINDINGS The Commission’s regulations afford broad authority for the conduct of hearings by Administrative Judges. 29 C.F.R. § 1614.109 et seq; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (as revised Aug. 5, 2015); Rountree v. Dep’t of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). The regulations state that an AJ shall, in appropriate circumstances, take such actions as the AJ deems appropriate when a party “...fail[s] without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses(es).” 29 C.F.R. § 1614.109(f)(3)(i). EEOC Regulation 29 C.F.R. §1614.109(f)(3) specifically sets forth the types of sanctions an AJ may take when required by the appropriate circumstances. An AJ may: 1) draw an inference that the requested information would have reflected unfavorably to the non-complying party; 2) consider the requested information to be established in favor of the opposing party; 3) exclude other evidence offered by the non-complying party; 4) issue a decision fully or partially in favor of the opposing party; or 5) take other action deemed appropriate. Id. 2020003067 4 In the present case, the AJ failed to issue Complainant a show cause order. Therefore, we find that the AJ erred in not providing Complainant with an opportunity to respond prior to the dismissal of the hearing request. The Commission has previously held that prior to the imposition of sanctions, the party against whom such sanctions are to be imposed is entitled to an opportunity to respond and show cause why sanctions should not be imposed. Miguelina S. v. Dep’t of Justice, EEOC Request No. 2019002953 (Jan. 27, 2020). Furthermore, we note that the Agency notified Complainant via email on October 17, 2019, of the scheduled initial conference. However, Complainant’s counsel was not provided that notice. A review of the record indicated that the Agency’s October 3, 2019, referral to the AJ did not include information about Complainant’s representation by counsel even though the Agency was aware that Complainant was represented by counsel, and had been throughout the life of her complaint. As such, the AJ could not have notified Complainant’s Counsel of the Initial Conference. We find that the Agency’s failure to make Complainant’s counsel aware of the proceedings before the AJ is especially egregious given our prior appellate decision in which we found that the Agency had not notified Complainant’s attorney of record of the right to request a hearing, thereby warranting a remand of the complaint. Inexplicably, the Agency again did not notify the AJ about Complainant’s representation nor Complainant’s counsel of the initial conference, and we do not fault Complainant for not wanting to move forward without benefit of Counsel. The Commission hereby reminds the Agency of the Commission’s regulations and EEO MD-110, in pertinent part, “[u]nless the complainant states otherwise, copies of the acknowledgment and all subsequent actions on the complaint shall be mailed or delivered to the complainant’s representative with a copy to the complainant.” EEO MD-110 at Chap. 5, Sec. I (Aug. 5, 2015). See also, 29 C.F.R. 1614.605(d) (stating that “… but time frames for receipt of materials shall be computed from the time of receipt by the attorney.” In addition, the AJ should have followed proper procedures and issued a show cause order prior to ordering any sanctions according to the procedures in EEO MD-110 Chap. 7. However, we need not address whether an appropriately tailored sanction was imposed because we have concluded that, in the absence of a show cause order, the AJ erred in imposing a sanction authorized by 29 C.F.R. §1614.109(f)(3). Accordingly, we remand this matter for a hearing in accordance with the order below. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission VACATES the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below. 2020003067 5 ORDER The Agency is directed to submit a copy of the complaint file to the EEOC’s Memphis Hearings Unit within thirty (30) calendar days of the date this decision is issued. 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. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. § 1614.109 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. 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 2020003067 6 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). 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. 2020003067 7 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 2, 2021 Date Copy with citationCopy as parenthetical citation