0520150139
08-24-2015
Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Request No. 0520150139
Appeal No. 0120113842
Agency No. 015637
DECISION ON REQUEST FOR RECONSIDERATION
The Agency timely requested reconsideration of the decision in Complainant v. Department of Commerce (Patent and Trademark Office), EEOC Appeal No. 0120113842 (October 22, 2014). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(c).
At the time of events giving rise to this matter, Complainant worked as a Patent Examiner, GS-1224- 2, Office of the Commissioner for Patents, at the Agency's facility in Arlington, Virginia.
On May 18, 2001, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and/or reprisal for prior protected EEO activity when:
1. In December 2000, Complainant's supervisor (S1) deducted workflow points that impacted Complainant's production that her Group Director later reinstated;
2. On December 15-19, 2000, S1 created an atmosphere that inhibited Complainant's ability to meet the production goals for the quarter by neither reviewing her cases nor allowing experienced patent examiners to review her complied cases;
3. On December 20, 2000, S1 attempted to charge Complainant with being Absent Without Leave (AWOL) even though she informed S1 via email and interoffice calendar scheduling of her intent to use annual leave;
4. On January 3, 2001, Complainant was given an oral warning;
5. On January 4, 2001, S1 left a copy of the oral warning that was given to Complainant on the floor copier for five hours;
6. On January 18, 2001, S1 informed Complainant that she did not receive her promotion in a timely manner because she was a Mechanical Engineer in a Chemical and Engineering Technology Center;
7. From May 1999 to present Complainant has been disparately treated in comparison to a similarly situated examiner of a different race in the same art unit who had significantly lower production, performance of lesser quality and quantity and a poorer attendance record; and
8. On April 25, 2001, Complainant was forced to interact in a hostile work environment with her supervisor who threw a stack of papers in Complainant's face and chest.
The Agency accepted the complaint for investigation. However, shortly thereafter, the Agency decided to hold continued processing of Complainant's individual claim in abeyance due to a pending class action that was likely to subsume her issues if certified. Although Complainant's complaint was in abeyance, it appears that the Agency completed the investigation. On or about March 5, 2002, following her receipt of the report of investigation, Complainant asserts she filed a request for a hearing before an Administrative Judge (AJ) with the Hearings Unit of EEOC's Washington Field Office (WFO).
Complainant's individual complaint was held in abeyance from July 2011 through the end of August 2005. In August 2005, it was eventually determined the Complainant's case was not part of the class action, so the Agency notified Complainant that it was resuming the processing of her individual complaint. On October 4, 2005, the Agency forwarded the report of investigation and administrative file in Complainant's case to the WFO Hearings Unit in order to restart the hearing process. For reasons unexplained in the record, it appears that the WFO did not respond to the Agency or Complainant for the next five years.
In November 2010, the Agency apparently made an inquiry to WFO concerning the status of Complainant's hearing. At that time, the Agency was advised by the WFO that it did not have a hearing request from Complainant in its records. In December 2010, the Agency informed Complainant that the WFO did not have her hearing request, and asked her to forward a copy of the March 2002 request. Complainant was unable to produce a copy of her original hearing request, so submitted a new request to the Agency, dated January 13, 2011.
When Complainant was unable to retrieve her copy of her March 5, 2002 hearing request and the WFO was not moving forward to docket the matter, Agency decided to issue a final decision based on the evidence gathered during the investigation. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
Complainant appealed, arguing, among other things, that the Agency erred in issuing the final decision because she had requested a hearing before an EEOC AJ.
In EEOC Appeal No. 0120113842, we concluded the Agency erred in issuing it final decision without a hearing. In the interest of preserving access to the EEO process, we vacated the Agency's final decision and remanded the complaint for the scheduling of a hearing before an EEOC AJ.
In its request for reconsideration, the Agency expresses its disagreement with the previous decision and presents some of the same arguments detailed in its final decision considered in the original appeal. In sum, it contends that there is no evidence that Complainant actually requested a hearing in March 2002 as the EEOC's WFO has repeatedly declared it never received the request, the Agency does not have a copy, and Complainant has never been able to produce it. The Agency argues that fairness requires that it should not have to try a case over a decade old when there is no evidence that Complainant actually filed a timely hearing request. It asserts that the requirement to do so will have a "substantial impact on the policies, practices, and operations of the Agency."
We disagree. The Agency's argument is significantly weakened by the fact that in October 2005, shortly after the Agency decided to remove Complainant's case from abeyance, it sent the report of investigation and administrative file to the WFO to start the hearing process. It seems highly unlikely that the Agency would have taken this action if it had not believed at that time that Complainant had filed a hearing request while her case was in abeyance. Then, inexplicably, the Agency allowed five years to pass before checking into the status of Complainant's hearing. Thus, we conclude that the Agency cannot now claim unfairness when it contributed to the excessive delays in this matter.
We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, � VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 0120113842 remains the Commission's decision and the Agency shall comply with the Order set forth below. There is no further right of administrative appeal on the decision of the Commission on this request.
ORDER
The Agency is directed to submit a copy of this decision and the complaint file to the Hearings Unit of the EEOC's Washington Field Office within fifteen (15) 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 complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall adjudicate the complaint and issue a decision in accordance with 29 C.F.R. � 1614.109. Upon receipt of the Administrative Judge's decision, the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
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.
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 Complainants 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 24, 2015
__________________
Date
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