0120181376
07-24-2018
Toni M,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Toni M,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181376
Agency No. 200H-0631-2018101786
DECISION
On March 8, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency letter dated February 12, 2018, closing her case 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Physician at the Western Massachusetts Healthcare System in Northampton, Massachusetts.
Complainant initiated equal employment opportunity (EEO) counseling on October 25, 2017. For reasons not identified in the record, other than acknowledging this contact, the Agency's EEO office took no further action to process Complainant's EEO case until January 12, 2018, when it issued a letter confirming the case was still open. Complainant died somewhere between December 8, 2017 and December 14, 2017. In the January 12, 2018, letter which was sent to the Executor of Complainant's estate, the Agency advised that an informal EEO case is not extinguished because of death.
By letter to the Executor of Complainant's estate dated February 12, 2018, the Agency advised that while a complaint initiated by a federal employee may survive her death, the estate of that employee has no right to file a formal complaint, i.e., only when an employee dies during pre-complaint counseling and the agency subsequently issues a notice of right to file a complaint to the deceased employee does her claim survive. The Agency advised the Executor that it would not be issuing a notice of right to file the complaint, and the case was closed, and gave no appeal rights.
On February 21, 2018, the attorney for the Estate wrote the Agency's EEO office challenging its decision to close the Estate's case, and asked that it reconsider its decision to do so. After getting no reply, the Estate filed the instant appeal on March 8, 2018, indicating that it was appealing from the Agency's February 12, 2018, letter.
On March 16, 2018, the Agency issued the Estate a notice of right to file a formal complaint.2 The Estate filed an EEO complaint on March 22, 2018. On April 2, 2018, the Agency acknowledged receipt of the complaint.
There is no documentation in the record showing that the Agency has defined the claims in the complaint, and we decline to do so here. Nevertheless, we will give a general idea of what the complaint concerns without in any way ruling on the proper definition thereof. Complainant alleged that she was discriminated against based on her sex (female), disability, and reprisal for prior EEO activity when she was disparately treated, harassed, and was not provided reasonable accommodation. Some examples thereof regarded unequal pay, assignment of duties, demotion, and violating her rights under the Family and Medical Leave Act (FMLA).
In a brief following the Estate's appeal, the Estate observes that after it filed its appeal the Agency issued a notice of right to file a complaint, which was then filed. While using different legal language, the Estate indicates that it was unclear whether the Agency rescinded its February 12, 2018, decision. The Estate challenges the finding that the death of the Complainant closes the Estate's administrative EEO case.
In opposition to the appeal, the Agency's Office of General Counsel, while using different legal terminology, argues in effect that it rescinded its February 12, 2018, letter, so the appeal no longer regards a matter in controversy.
ANALYSIS AND FINDINGS
As an initial matter, even though the Agency's February 12, 2018, letter to Complainant did not contain appeal rights, it was a final Agency decision (FAD) because by operation thereof, the Agency closed the Estate's EEO complaint.
We find that it is more likely than not that the Agency rescinded its FAD, as evidenced by the Agency subsequently issuing the Estate a notice of right to file a complaint, and acknowledging receipt thereof.
Nevertheless, to leave no doubt about the status of Complainant's case, the Agency shall comply with the Order below.
ORDER
To the extent it has not already done so, the Agency shall resume processing Complainant's EEO complaint from the point processing ceased in accordance with 29 C.F.R. Part 1614. The Agency shall either issue a FAD dismissing the Estate's entire complaint (unless it has already issued her a notice of the right to request a hearing), or accept part or all the complaint for investigation within 30 calendar days of the date of this decision, unless it has already done so.
As provided in the statement entitled "Implementation of the Commission's Decision," the Agency must send to the Compliance Officer a copy of the FAD with appeal rights to this office dismissing the Estate's entire complaint or the letter to the Estate accepting some or all the Estate's claims.
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.
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
July 24, 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 EEOC Regulation 29 C.F.R. � 1614.105(d) requires that unless the aggrieved person grants an extension or chooses alternative dispute resolution (ADR), as specified, the EEO counselor shall inform the aggrieved, in writing of the right to file an EEO complaint no later than the 30th day after contacting the EEO counselor. The 30th day would have been on November 24, 2017, while Complainant was still living.
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