Lashawn C.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019000657 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lashawn C.,1 Complainant, v. Sonny Perdue, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency. Appeal No. 2019000657 Hearing No. 531-2014-00234X Agency No. APHIS-CF-2013-00744 DECISION On October 9, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 24, 2018, final decision concerning her equal employment opportunity (EEO) complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES and REMANDS the Agency’s final decision. ISSUES PRESENTED The issue presented herein is whether the Agency properly issued a decision dismissing the complaint without issuing a final agency decision (FAD). 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. 2019000657 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Support Assistant, GS-6 at the Agency’s Office of Civil Rights, Diversity, and Inclusion in Washington, DC. On July 26, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (57) and reprisal for prior protected EEO activity when: 1. for the last three years until the present the Complainant has not received Outlook training, or any other training relevant to her job that her coworkers have received; 2. on June 24, 2013, the Complainant learned that her supervisor had not submitted her time and attendance and as a result the Complainant did not get paid; 3. on July 1, 2013, when the Complainant learned that she had not received her pay for pay period 11 and pay period 12 was not in the system; 4. on July 1, 2013, to the present when the Complainant tried speaking to the Division Director about her problems with her supervisor and the Division Director instructed her to go to her supervisor and "fix it." 5. the Complainant's supervisor did not provide her with her mid-year performance review which was due on May 5, 2013, and she has not received her mid-year as of July 26, 2013; 6. beginning in 2009 to the present Complainant's supervisor failed to provide her with work assignments; 7. in March 2012 to the present Complainant's work schedule has been changed from maxi-flex to a standard work schedule 9:30 - 6:00; and, 8. when the Complainant was not advised of a Program Assistant position when it became available. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ denied the hearing request on the grounds that Complainant failed to comply with the AJ’s Orders. Specifically, Complainant failed to appear for her deposition, a settlement conference, and a prehearing conference. The AJ issued a Show Cause Order, but Complainant did not respond until six days after the response date. The AJ found that Complainant’s response was not compelling. Therefore, the AJ dismissed the hearing request with prejudice and remanded the complaint to the Agency for a FAD. Instead of issuing a FAD, the Agency forwarded the AJ’s dismissal of the complaint with prejudice to the Complainant. CONTENTIONS ON APPEAL On appeal, Complainant contends among other things, that her complaint has not been fully addressed. In response, the Agency maintains that the AJ’s decision applied the correct legal standard for dismissing Complainant’s complaint. 2019000657 3 The Agency asserts that it fully implemented the AJ’s decision. The Agency requests that the Commission dismiss the Appeal as baseless and without merit and affirm the AJ’s dismissal ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). In the instant case, the AJ noted that Complainant failed to attend her deposition, a settlement conference, a prehearing conference, and failed to respond to a Show Cause Order in a timely fashion. Therefore, the AJ dismissed Complainant’s hearing request and remanded the matter to the Agency to issue a final decision on the merits. Instead, the Agency merely issued a final order implementing the AJ’s decision. Under the circumstances in this case, we find that the Agency’s dismissal of the complaint by forwarding the AJ’s decision was improper. We find that it was within the AJ’s discretion to dismiss Complainant’s hearing request from the hearing process for failure to comply. The Agency, however, should have issued a final decision on the merits of the claim, based on the AJ’s order to issue a FAD. Further, we find that there was sufficient information in the record for the Agency to issue a decision on the merits. The Commission has held that as a general rule, an agency should not dismiss a complaint when it has sufficient information on which to base an adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (August 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (April 23, 1998); Kroeten v. U.S. Postal Serv., EEOC Request No. 05940451 (December 22, 1994). Therefore, under the circumstances of this case, we find that the Agency's dismissal of the complaint for failure to comply with the AJ’s order was improper. The Agency, in its final order, provides no explanation for its conclusion, simply stating it was adopting the AJ’s decision. However, the Agency made no decision on the merits of the claims. In Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also, Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Therefore, we remand the formal complaint to the Agency for a final decision on the merits. 2019000657 4 CONCLUSION We find that the complaint was improperly dismissed by the Agency. Therefore, we VACATE the Agency’s final decision and we REMAND the matter to the Agency to issue a FAD on the merits of the complaint. ORDER Within 60 days of the date of this decision becomes final, the Agency must issue a FAD on the merits of the complaint, as set forth in 29 C.F.R. § 1614.110. A copy of the new decision must be sent to the Compliance Officer as referenced herein. 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 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. 2019000657 5 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. 2019000657 6 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 19, 2020 Date