0120160641
02-15-2018
Regena L.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Regena L.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
(Veterans Health Administration),
Agency.
Appeal No. 0120160641
Agency No. 2003-05492015100414
DECISION
On November 17, 2015, 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 26, 2015 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.
BACKGROUND
On July 13, 2014, Complainant began agency employment as a Licensed Professional Counselor (LPC) at a Medical Center Domiciliary in Bonham, Texas.
On December 16, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to hostile work environment harassment on the bases of race (African-American) and reprisal for prior protected EEO activity (complaint to management, union, and Office of Special Counsel about Agency's failure to place her in position for which she was hired) when:
1. about October 3, 2014, management would not place Complainant in an LPC position in the Post-Traumatic Stress Disorder (PTSD) program, which is where she was hired to work,
2. on October 15, 2014, the Domiciliary Chief told Complainant "I could pull the announcement for your current position and then you would have to compete for it,"
3. on October 17, 2014, the Social Work Supervisor issued Complainant an unsatisfactory placement follow-up, and
4. on October 22, 2014, S1 put her finger in Complainant's face and yelled "I should not have hired you . . . You are not qualified!"2
For investigation, the Agency accepted (1) as an independently actionable claim of disparate treatment, and (1) through (4) as incidents supporting the harassment claim.
Following the EEO investigation, in a letter dated July 10, 2015, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or an immediate final agency decision. The Agency stated that Complainant did not respond to the notice. The Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
The instant appeal from Complainant followed. On appeal, Complainant stated that, on July 29, 2015, she requested a hearing before an EEOC AJ.3 Complainant stated that her prior EEO activity is her initial contact with an EEO Counselor, which resulted in her removal from federal service. Further, Complainant alleged that her removal from employment was retaliatory.
ANALYSIS AND FINDINGS
The Commission finds that the Agency erred in issuing a final decision. On appeal, Complainant stated that she requested a hearing before an EEOC AJ. Complainant provided a copy of a hearing request form dated July 29, 2015. Further, we reviewed the Commission's record system for the Hearing Units and found evidence that, on August 21, 2015, EEOC's Dallas District Office docketed a hearing request for the instant complaint (identified as EEOC Hearings No. 450-2016-00015X). In the interest of preserving access to the EEO process, based on the circumstances herein, we find that Complainant requested a hearing before an EEOC AJ in a timely manner. We find the Agency erred in issuing a final decision in this matter.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the final agency decision and REMAND the matter for further processing consistent with this decision and the Order below.
ORDER
The Agency is directed to submit a copy of this decision and the complaint file to the Hearings Unit of the EEOC Dallas District Office 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 conduct appropriate proceedings 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 (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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
February 15, 2018
__________________
Date
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 In a letter dated November 17, 2014, the Agency terminated Complainant's employment effective November 21, 2014, for subpar performance. In lieu of termination, Complainant resigned effective November 20, 2014.
3 Complainant provided a Hearing Request Form signed by her representative and dated July 29, 2015. The form has the fax number of EEOC's Dallas District Office written on it, but there is no confirmation of fax provided.
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