Silas T.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.Download PDFEqual Employment Opportunity CommissionNov 13, 20180120170904 (E.E.O.C. Nov. 13, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Silas T.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120170904 Agency No. 2004-0659-2016101017 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated November 30, 2016, dismissing his complaint of unlawful 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. ISSUE PRESENTED The issue presented is whether the record contains sufficient evidence that Complainant received a copy of the report of investigation (ROI) and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Support Assistant, GS-0679-6, at the Agency’s Charlotte, North Carolina Community Based Outpatient Clinic facility. On January 5, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and disability (post-traumatic stress disorder, diabetes, depression, anxiety, and sinusitis) when: 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. 0120170904 2 1. In November 2015, a coworker filed a police report against Complainant, alleging that he assaulted her and went through her phone and lunch bag; and 2. On December 10, 2015, he received a lower rating on his performance evaluation than the prior year. The Agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency asserts that on June 13, 2016, at the conclusion of the investigation into claim 2, it had provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC AJ or a final Agency decision within thirty days of receipt of the correspondence. The Agency presumed that Complainant had received the above referenced June 13, 2016, Agency correspondence but that he did not request a hearing. The Agency thereupon issued the instant final decision on November 30, 2016, finding no discrimination. CONTENTIONS ON APPEAL On appeal, Complainant contends that he never received a copy of the notice of the right to request a hearing. Complainant surmises that someone in the rental office of his apartment complex signed for delivery without providing him with the package. In the alternative, Complainant contends that he was subjected to discrimination. In response to Complainant’s appeal, the Agency provides a copy of the June 13, 2016, correspondence and a copy of the United Parcel Service (UPS) shipping label. According to the Agency, this correspondence was delivered to Complainant’s last known address on June 21, 2016. The Agency also contends that its final decision properly found that the preponderance of the evidence in the record did not establish that Complainant was subjected to discrimination. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(f) provides in relevant part that the agency shall provide the 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 Administrative Judge or may request an immediate final decision pursuant to 29 C.F.R. § 1614.110 from the agency with which the complaint was filed. Upon review of the record, the Commission is not persuaded that the Agency complied with the requirements above. The record contains a copy of the June 13, 2016, Transmittal of Investigative File letter, the Request for Hearing form, and the ROI. The record does not, however, contain evidence indicating that the ROI was actually delivered to Complainant. As noted above, Complainant maintained that he did not receive the ROI or notice of his right to request a hearing. Complainant further indicated that he wanted to request a hearing. Although the Agency on appeal provided a copy of the UPS label, the Agency provides no evidence that Complainant signed for or actually received the UPS parcel. 0120170904 3 On the UPS website, this tracking number produces no results.2 The record therefore does not contain evidence establishing that Complainant received the report of investigation or was informed of his 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). As such, the Commission finds that the Agency has not refuted Complainant’s contention that he did not receive the ROI and notice of right to request a hearing. Given that Complainant has already indicated on appeal that he desires to have a hearing in this case, the Commission will direct the Agency to submit a copy of the complaint file, including the ROI, to the Commission’s Charlotte District Office. CONCLUSION Accordingly, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed, we VACATE the Agency’s final decision finding no discrimination and REMAND this matter for further processing in accordance with this decision and the ORDER below. ORDER To the extent that it has not already done so, the Agency shall take the following remedial action within thirty (30) calendar days of the date this decision is issued: 1. The Agency shall issue to Complainant a copy of the investigative file. 2. The Agency shall submit to the Hearings Unit of the Commission’s Charlotte District Office a request for a hearing, a copy of this decision, and a copy of the investigative file. Thereafter, the 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 (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. 2 According to UPS’s website, UPS only retains tracking results for 120 days. 0120170904 4 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). 0120170904 5 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 November 13, 2018 Date Copy with citationCopy as parenthetical citation