Reina D.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Aug 15, 2018

0120162595 (E.E.O.C. Aug. 15, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Reina D.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120162595

Agency No. PHI-15-0950-SSA

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the July 11, 2016 final agency
decision (FAD) 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., 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

At the time of events giving rise to this complaint, Complainant worked as a Claims
Representative, GS-5, at the Agency’s Northeast Office in Philadelphia, Pennsylvania. On
November 24, 2015, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of religion (Muslim), disability, and age (60) when:

1. On August 13, 2015, Complainant received a notice of termination from
employment effective August 27, 2015, and

2. The Agency failed to provide Complainant with a reasonable accommodation
between November 2014 and August 27, 2015.

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.
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At the conclusion of the investigation, the Agency stated that it provided Complainant and her
attorney with copies of the report of investigation (ROI) and notice of her right to request a
hearing before EEOC Administrative Judge (AJ). After receiving no response from
Complainant, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the
Agency found that Complainant had not been subjected to discrimination and had not been
denied reasonable accommodation. The instant appeal followed.

On appeal, Complainant denies that she failed to respond to the Agency and claims that she did
not receive a copy of the ROI and notice of her right to request a hearing. Additionally,
Complainant states that she is unaware as to whether her former attorney received either, that her
former attorney left the law firm without communicating with her regarding the ROI, and that
she has been unsuccessful in gaining access to records held by her former attorney.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.108(f) provides that the agency shall provide a complainant
with a copy of the investigative file and shall notify the complainant that, within 30 days of
receipt of the investigative file, the complainant has the right to request a hearing and decision
from an AJ or may request an immediate final decision from the agency. Additionally, EEOC
Regulation 29 C.F.R. § 1614.110(b) provides that when an agency does not receive a reply to the
notice issued under § 1614.108(f), the agency shall take final action by issuing a final decision.

Complainant claims that she did not receive a copy of the ROI and that she does not know
whether her attorney received it. Complainant is no longer represented by the attorney, and
Complainant states that she learned in July 2016 that the attorney left the law firm without any
discussions about the ROI or receipt of it. The record contains two copies of the United Parcel
Service (UPS) shipping labels indicating that the ROI and the right to request a hearing notice
were sent to Complainant and Complainant’s then-attorney on April 30, 2016. The Agency
noted in the FAD that Complainant’s attorney received the ROI packet on May 6, 2016, while
Complainant received it on May 18, 2016. The Commission takes notice that the UPS shipping
label was missing part of Complainant’s full street address.

The Agency did not specifically respond to Complainant’s assertion that she did not receive the
ROI or notice of her right to request a hearing. In addition, the track and delivery confirmation
information contained on the shipping labels is no longer available. Thus, the record does not
contain evidence establishing that Complainant or her representative received the ROI or were
informed of Complainant’s right to request a hearing. The Commission has repeatedly stated
that “the agency has the burden of providing evidence and/or proof to support its final
decisions.” Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); See
Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992). The record does not
contain any evidence demonstrating when or if Complainant or her representative actually
received either mailing.
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Without evidence showing when or if Complainant received the ROI and notice of her right to
request a hearing, the Commission cannot find in the instant factual circumstances that
Complainant was actually provided with the notice to request a hearing required by 29 C.F.R. §
1614.108(f).

CONCLUSION

The Agency’s final decision finding no discrimination is VACATED and the complaint is
REMANDED to the Agency for further processing in accordance with this decision and the
ORDER herein.

ORDER

Within 30 days of the date this decision is issued, the Agency shall provide Complainant with a
copy of the report of investigation and a notice of her right to a hearing pursuant to 29 C.F.R.
§ 1614.108(f). Following the issuance of this notice, the Agency shall process Complainant's
complaint in accordance with applicable EEOC regulations. As provided in the statement
entitled "Implementation of the Commission's Decision,” the Agency must send to the
Compliance Officer a copy of the notice of the right to a hearing.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.

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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.
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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 15, 2018
Date