Joshua F.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 10, 2020

2019004744 (E.E.O.C. Aug. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joshua F.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2019004744 Hearing No. 461-2018-00132X Agency No. 2003-0629-2017103673 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from a decision issued by an EEOC Administrative Judge (AJ), dated November 27, 2018, concerning an equal employment opportunity (EEO) complaint which claimed 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2 BACKGROUND During the period at issue, Complainant worked as a Human Resources Assistant, GS-7, at the Agency’s Human Resources Management Service, Southeast Louisiana Veterans Health Care System in New Orleans, Louisiana. 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 The Agency did not issue a final decision in accordance with the AJ’s order dated November 27, 2018, which will be discussed in greater detail below. 2019004744 2 On August 9, 2017, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on color, disability, age, and in reprisal for protected EEO activity (current activity) when: a. on April 20, 2017, the Supervisory Human Resources (HR) Specialist did not select him for the in-Service position of HR Specialist Trainee, GS-7; b. in May 2017, the Supervisor HR Specialist did not select him for the In-Service position of Training Instructor for Employee Education, GS-11; and c. on June 8, 2017, the Supervisory HR Specialist issued him an admonishment. After the investigation of the formal complaint, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, on November 27, 2018, the AJ issued an order dismissing Complainant’s hearing request and returning the case to the Agency. The AJ’s Order instructed the Agency to issue a final decision within 60 days. The Agency did not issue a final decision as instructed. The instant appeal followed. ANALYSIS AND FINDINGS The Commission has held that in certain circumstances, where a complainant, without good cause shown, fails to participate in a pre-hearing conference, the AJ may consider the act as a withdrawal of the request for a hearing and remand the case to the agency for a final decision on the merits. Reed v. U.S. Postal Service, EEOC Appeal No. 01A05039 (Jan. 3, 2001); Kelsey v. Department of the Army, EEOC Appeal No. 01A05338 (July 30, 2001). After a careful review of the record, the Commission finds that the AJ properly dismissed Complainant’s hearing request and remanded the complaint back to the Agency. Specifically, the record reflects that the AJ’s Scheduling Order, dated October 19, 2018, states that failure to comply with any part of the order might result in including cancellation of the hearing. According to the AJ’s decision, Complainant’s hearing request was dismissed for the following reasons: (1) this matter was scheduled for a telephonic Initial Status Conference to occur on November 27, 2018; (2) the Order scheduling the Initial Conference, along with other relevant documents, was sent to the parties via e-mail on October 19, 2018, and again on November 15, 2018; (3) the Agency representative timely appeared for the status conference on November 27, 2018; (4) the AJ and the Agency representative waited on the call for five minutes, but Complainant never dialed in; (5) the AJ then called Complainant’s office but received his voicemail message; (6) upon calling Complainant’s home, the recording indicated that the number had been disconnected; and (7) the AJ returned to the conference call and waited with the Agency representative until 9:15 a.m., but Complainant never dialed in the call. 2019004744 3 Based on these facts, the AJ issued an order dismissing the hearing request and remanding the complaint back to the Agency for further processing. Complainant does not deny that he was notified of the date of the Initial Conference via email from the AJ. On appeal, Complainant explains his failure to attend the Initial Conference as ordered by stating he was still trying to secure an attorney. He also states, without much detail or supporting evidence, that during this period he was suffering from some symptoms of PTSD. We note, however, that Complainant never contacted the AJ in advance of the scheduled Initial Conference to ask to a delay for these reasons. In sum, we conclude Complainant has not established that the AJ abused his discretion in cancelling the hearing under these circumstances. However, despite the propriety of the AJ’s actions, the Agency failed to issue a final decision on the merits of the formal complaint. The AJ expressly instructed the Agency to issue “a final decision on the record [emphasis added]” pursuant to 29 C.F.R. § 1614.110(b), consisting of the Agency’s findings on the merits of each issue in the complaint. Therefore, the Agency should have issued a decision on the merits. Accordingly, we REMAND the instant case to the Agency for further action in compliance with the ORDER below. ORDER The Agency is ORDERED to take the following action: Within forty-five (45) days from the date this decision is issued, the Agency shall issue a final decision on the merits of the complaint in accordance with 29 C.F.R. § 1614.110(b), with appropriate appeal rights to this Commission. A copy of the Agency’s final decision must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 2019004744 4 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2019004744 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 August 10, 2020 Date