0120103636
04-19-2012
Tearanda D. Pearsey, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tearanda D. Pearsey,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103636
Agency No. 200I-0317-2009104527
DECISION
Complainant filed a timely appeal with this Commission from the June 21, 2010 final Agency decision (FAD) concerning her 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. For the following reasons, the FAD is VACATED, and the complaint is REMANDED for hearing.
At the time of events giving rise to this complaint, Complainant worked as a Rating Specialist at the VA Regional Office in St. Petersburg, Florida. On October 5, 2009, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and in reprisal for prior protected EEO activity when, on August 21, 2009, she was placed on a Performance Improvement Plan.
After determining that Complainant failed to timely request a hearing, the Agency issued its FAD, pursuant to 29 C.F.R. � 1614.110(b), on the merits of Complainant's complaint based on the evidence gathered during the investigation. The Agency concluded that Complainant had failed to prove that discrimination or reprisal occurred. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she was improperly denied a hearing. Complainant stated that she timely requested a hearing twice within the applicable timeframe. Complainant submitted a copy of her April 1, 2010 hearing request that she faxed to the Commission's Miami District Office within the required 30-day period. Accordingly, Complainant requests that the Commission vacate the FAD and grant her a hearing.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that Complainant has the right to request a hearing before an EEOC Administrative Judge (AJ) within 30 days of the receipt of the investigative file. A complainant may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the Agency's transmittal letter. 29 C.F.R. � 1614.108(g). Complainant is also required to submit a copy of this request to the agency. Id. Within 15 days of receipt of the request, the Agency EEO office shall provide a copy of the complaint file to the Commission. Id.
In the case at hand, the record reveals that Complainant received the investigative file, along with her right to request a hearing on March 4, 2010. The Notice transmitting the investigative file informed Complainant that she had thirty days from receipt of the Notice to request a hearing. The Notice further informed Complainant, in pertinent part, that Commission regulations require that a copy of the hearing request must be sent to the Agency. The Notice did not inform Complainant that her failure to provide the Agency with a copy of the hearing request could result in her forfeiting her right to a hearing. Additionally, the Notice contained a copy of the Request for Hearing Form. This form also provided Complainant notice that if a copy of the hearing request was not sent to the Agency, the "request will have no effect and an Administrative Judge will not be appointed; or if appointed, the Administrative Judge will place [the] request into an inactive docket until [Complainant] inform[s] the [A]gency of [her] request for a hearing."
The record reflects that on April 1, 2010, Complainant faxed the hearing request to the Miami District Office, within thirty days of receiving the investigative file. The record is devoid of any evidence that Complainant sent a copy of this hearing request to the Agency. As a result, the Agency issued a FAD on June 21, 2010. EEOC Regulation 29 C.F.R. � 1614.108(g) provides that a "complainant shall send a copy of the request for hearing to the agency EEO office." Furthermore, in Gallo v. Dep't of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002), the Commission held that failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. However, the Commission in Cerisano v. U.S. Postal Serv., EEOC Appeal No. 0120041629 (Dec. 15, 2006), found that an agency must provide a complainant with adequate notice that she risks forfeiture of her right to request a hearing by neglecting to provide the agency with notice of her request for a hearing.
In the instant matter, while the Agency's March 2010 letter to Complainant advised her to submit a copy of her hearing request to the Agency, it did not inform her that she risked forfeiture of her right to a hearing if she failed to do so. Instead, as set forth above, the Agency advised Complainant that her failure to provide notice of her request for a hearing could result in non-processing of the request or placement on an inactive docket, the latter could then be remedied by Complainant subsequently notifying the Agency of her hearing request. As such, the Commission finds that the Agency's notice here is fundamentally insufficient to put Complainant on notice that she risked forfeiting her right to a hearing, and, in fact, would lead her to believe that she risked far less dire consequences for this omission. Moreover, the record is otherwise devoid of any evidence to show that Complainant had notice that she risked forfeiting her right to a hearing by failing to provide the Agency notice of her request. Furthermore, lacking this notice, the Commission finds that Complainant's April 1, 2010 request for a hearing at the EEOC's Miami District Office effectively transferred jurisdiction of the complaint to the Commission, such that the Agency had no jurisdiction to issue a FAD on June 21, 2010.
The Commission hereby advises Complainant that the Commission's regulations and Management Directive 110 (available at www.eeoc.gov), in pertinent part, mandate that a complainant must provide the Agency with a copy of every document she files with the Commission, whether it be at the hearing level or on appeal. The Commission further advises Complainant, that by virtue of this decision, she has clearly been put on notice of the requirement to provide the Agency with a copy of all documents she files with the Commission. Finally, the Commission advises Complainant that any further omissions in this regard could result in sanctions against her interests in this case.
Accordingly, the Commission finds that, under these circumstances, the Agency's final decision must be VACATED, and Complainant's complaint must be REMANDED to the Agency to submit to the Hearings Unit as detailed in the Order below.
ORDER
The Agency shall submit to the Hearings Unit of EEOC's Miami District Office a request for a hearing and a copy of the complaint file within thirty (30) calendar days of the date this decision becomes final. 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 19, 2012
Date
2
0120103636
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120103636