U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rashad W.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Request No. 2020004048 Appeal No. 2019006004 Hearing No. 420-2017-00260X Agency No. APHIS-2016-00970 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2019006004 (June 23, 2020). 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). BACKGROUND During the relevant period at issue, Complainant was employed by the Agency as a Veterinary Medical Officer, GS-0701-12, in Mt. Vernon, Illinois. 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. 2020004048 2 On November 16, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age when, on August 3, 2016, he learned that he had not been selected for a GS-0701-11/12 Veterinary Medical Officer position in Riverton, Wyoming, advertised under Vacancy Announcement number 24VS-APHIS-DH-2016-0775. The Agency accepted the complaint and conducted an investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On July 11, 2017, the Agency filed a motion to dismiss Complainant’s EEO complaint for untimely EEO Counselor contact. At the July 24, 2017, Initial Scheduling Conference, the AJ struck the motion to dismiss as moot, ordered the parties to engage in discovery, and set a briefing schedule for dispositive motions. On October 27, 2017, the Agency filed a motion for a decision without a hearing. Complainant responded to the Agency’s motion on November 26, 2017, and the Agency replied on December 12, 2017. On November 6, 2017, the Agency filed another motion to dismiss. Complainant filed a response to the motion to dismiss on November 12, 2017, and the Agency filed a reply brief on November 17, 2017. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s motion to dismiss on September 5, 2019. The Agency issued a final order on September 5, 2019, fully implementing the AJ’s decision dismissing Complainant’s EEO complaint. Complainant appealed arguing the AJ erred in dismissing his complaint for untimely EEO Counselor contact. Complainant also pointed to evidence that, according to him, conclusively established that he was subjected to discrimination based on age and requested that the Commission reverse the AJ’s decision granting the Agency’s motion to dismiss. In response, the Agency contended that its final order should be affirmed because Complainant did not contact an EEO Counselor within 45 days of learning that he had not been selected. In our previous decision, we determined that the AJ found that the complaint should be dismissed because Complainant did not contact an EEO Counselor until more than 45 days after he learned via email on June 24, 2016, that he had not been selected for the position at issue. However, the decision found that the effective date of the selectee’s appointment was July 24, 2016, and Complainant was not formally notified that he had not been selected until August 3, 2016. The decision found that both dates were within 45 days of Complainant’s initial contact with an EEO Counselor on August 26, 2016. Therefore, we concluded that the dismissal for untimely EEO Counselor contact was improper. The appellate decision went on to issue a decision on the underlying merits of the claim and found that the preponderance of the evidence in the record did not establish that Complainant was subject to discrimination based on age. 2020004048 3 On request for reconsideration, Complainant argues that the Commission should reverse its decision, which was made without a hearing, because there were material facts in dispute. In response, the Agency argues that we should deny Complainant’s request. ANALYSIS On the outset, we find that our prior decision properly reversed the AJ’s finding on the issue of timeliness. EEOC Regulation 29 C.F.R. §1614.107(a)(2) states, in relevant part, that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. As discussed above, Complainant initially contacted an EEO Counselor on August 26, 2016. The effective date of the selectee’s appointment was July 24, 2016 and Complainant was not formally notified that he was not selected until August 3, 3016. Because Complainant initially contacted an EEO Counselor within 45 days of either of these two dates, dismissing his complaint for untimely EEO Counselor contact was improper. Although we affirm our prior decision’s finding that the AJ improperly dismissed the complaint for untimely EEO counseling contact, we are vacating our prior decision’s adjudication on the merits of the claim. In so doing, we note that EEOC regulations confer upon its AJs “full responsibility for the adjudication of the complaint, including overseeing the development of the record.” 29 C.F.R. § 1614.109. We also note that an AJ is authorized, among other things, to issue a decision by summary judgment on the merits of a claim when there are no genuine issues of material fact in dispute. Equal Employment Opportunity Directive for 29 C.F.R Part 1614 (MD-110), Chap. 7, Sect. III(D) (Aug. 5, 2015). Here, Complainant did not have the opportunity to fully contest the appropriateness of issuing a decision on the merits of his claim in this case by summary judgment rather than after an evidentiary hearing. Therefore, on our own motion, we now find that our decision on the merits by summary judgment should be vacated and the matter remanded to an AJ to fully adjudicate the claim either by summary judgment (with opportunity for the parties to oppose) or following a hearing. CONCLUSION After reconsidering the previous decision and the entire record, we AFFIRM our prior decision’s finding that the AJ improperly granted the Agency’s motion to dismiss for untimely EEO counseling contact. However, we VACATE our prior decision on the merits of the claim by summary judgment and REMAND the matter for further processing in accordance with the ORDER below. 2020004048 4 ORDER (E0618) Within thirty (30) calendar days of the date this decision is issued, the Agency is ordered to submit a renewed request for a hearing, along with a copy of the complaint file and a copy of this decision, to the appropriate EEOC Hearings Unit. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the EEOC Administrative Judge shall 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. 2020004048 5 COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0610) This decision of the Commission is final, and there is no further right of administrative appeal from this decision. This decision affirms the Agency's final action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 June 3, 2021 Date
