[Redacted], Barabara C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2021000638 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barabara C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, Agency. Appeal No. 2021000638 Hearing No. 570-2020-00987X Agency No. DEPT-2019-00721 DECISION 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 11, 2020, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the complaint for further action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Ethics Specialist at the Agency’s Office of Ethics, Office of General Counsel in Washington, D.C. On August 30, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her disability (obsessive compulsive disorder and anxiety disorder) and in reprisal for prior protected EEO activity (instant EEO complaint and request for reasonable accommodation) when: 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. 2021000638 2 1. on May 16, 2019, Complainant was issued a Notice of Termination during her probationary period as an Ethics Specialist (Tier 1 Fellow), and was terminated effective May 18, 2019; 2. beginning on or around January 31, 2019, and continuing, management failed to process Complainant’s multiple requests for reasonable accommodation; 3. on unspecified dates, management failed to provide Complainant with an Individual Development Plan (IDP) and denied her training requests; 4. on several dates, Complainant was subjected to various incidents of harassment, including but not limited to: a. on or around April 24, 2019, after she disclosed the nature of her disability and requested an opportunity to discuss a reasonable accommodation, Complainant’s first-line supervisor (S1) shouted, “You should have disclosed your disability when you were hired,” and thereafter instructed Complainant to sit at the cubicle of a colleague who was on leave for the day; b. on or around March 15, 2019, S1 berated Complainant in a hostile manner regarding her request for a reasonable accommodation; c. on an unspecified date, S1 relocated Complainant to a location immediately adjacent to an air-conditioning unit and prohibited her from moving; and d. on unspecified dates, management failed to conduct Complainant’s quarterly performance reviews. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). On April 25, 2020, the EEOC’s Washington Field Office received Complainant’s hearing request. When the Agency did not receive Complainant’s request for a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s August 11, 2020, final decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On April 6, 2021, an EEOC AJ issued an Order of Dismissal. The AJ noted that the Agency previously issued a final decision asserting that it did not receive Complainant’s hearing request. Since Complainant appealed the Agency’s final decision to the Commission, the AJ determined that she did not have jurisdiction over Complainant’s hearing request and dismissed the request. 2021000638 3 CONTENTIONS ON APPEAL On appeal, Complainant argues that she filed her hearing request through the EEOC’s portal, and that the Agency received notification of her hearing request on April 25, 2020, via the portal. Complainant asserts that the Agency was instructed to upload the complaint file within fifteen days, and when it failed to do so, Complainant filed a Motion to Sanction and Motion for Entry of Default Judgment. Complainant contends that the Agency uploaded the ROI on August 13, 2020, and it filed its Response to Complainant’s Motion to Sanction and Motion for Entry of Default Judgment on August 19, 2020, proving that it received her hearing request. The Agency counters that Complainant was advised of her right to request a hearing and informed that she must serve the Agency should she elect to request a hearing. However, the Agency asserts that Complainant admitted that she never served the hearing request on the Agency’s EEO office, as required. The Agency states that the Commission has 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. The Agency also argues that it put Complainant on sufficient notice that her failure to properly service the Agency with her request for a hearing would result in substantial delays. See Blanca B. v. U.S. Postal Service, EEOC Appeal No. 0120171595 (Nov. 20, 2018). Accordingly, the Agency requests that the Commission find that it properly issued the final decision. 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 Chap. 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”). On February 26, 2020, the Agency notified Complainant that it would not complete the investigation into her complaint within 180 days, and it provided her with the right to request a hearing before an EEOC AJ. The Agency’s notice specifically instructed Complainant to send a copy of her hearing request to the Agency, with the relevant contact information. Complainant Appeal Brief at Exhibit G. It is undisputed that Complainant requested a hearing before an EEOC AJ through the Commission’s portal. Complainant avers that she served the Agency “via the portal.” However, Complainant did not claim to have complied with the Agency’s instruction to send a copy of her hearing request to the provided contacts. 2021000638 4 While the Agency is correct in noting that Complainant’s 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, an agency’s notice must be sufficient to put a complainant on notice that she risks forfeiting her right to a hearing if she does not notify the agency of her hearing request. Gallo v. Dep’t of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002), Cerisano v. U.S. Postal Serv., EEOC Appeal No. 0120041629 (Dec. 15, 2006). Here, with the notice of Complainant’s right to request a hearing, the Agency sent Complainant a hearing request form, which included the statement for Complainant’s acknowledgement: I understand that if I have not provided the agency with a copy of my request for a Hearing, this request will have no effect and an Administrative Judge will not be appointed, or if appointed, the Administrative Judge will place my request into an inactive docket until such time as I inform the Agency of my request for a Hearing. However, the Commission previously found that this identical language was fundamentally insufficient to put a 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. Specifically, the notice advised Complainant that her failure to provide a copy of her request for a hearing could result in non-processing of the request or placement on an inactive docket, which could then be remedied by Complainant subsequently notifying the Agency of her hearing request. Pearsey v. Dep’t of Veterans Affs., EEOC Appeal No. 0120103636 (Apr. 19, 2012). On April 24, 2020, the Agency completed the investigation and transmitted the ROI to Complainant. The Agency again informed Complainant that she could request an EEOC hearing, and advised, “[p]lease note that if these offices are not served with a completed copy of the ‘Request for an Administrative Hearing form,’ the EEOC will not be able to process your request.” The Agency attached the same hearing request form. ROI at Exhibit 5. We find that this second notice simply warned Complainant that the EEOC would be unable to process her hearing request if she failed to serve a copy to the Agency, and there is no caution that she risked forfeiting her right to a hearing. In response to Complainant’s appeal, the Agency argues that it put Complainant on notice that her failure to properly serve the Agency with her request for a hearing would result in “substantial delays.” However, we find that experiencing “substantial delays” is not the same as a risk of forfeiting a right to a hearing. We also note that this case is distinguishable from Blanca B., supra, because the agency explicitly informed the complainant that if she failed to send a copy of her hearing request to the agency, it “will issue a final decision on [her] complaint, resulting in the loss of my right to a hearing.” In this case, the Agency’s notices failed to properly inform Complainant of any risk to forfeiting her right to a hearing if she did not send a copy of her hearing request to the Agency. 2021000638 5 There is no other 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. Without such notice, we find that Complainant’s April 25, 2020, hearing request effectively transferred jurisdiction of the complaint to the AJ, and that the Agency had no jurisdiction to issue a final decision on August 11, 2020. CONCLUSION Accordingly, we VACATE the Agency’s final decision and REMAND the complaint for further processing, in accordance with the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC’s Washington Field Office within fifteen (15) calendar days of the date this decision is issued. 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 will resume the processing of the complaint in accordance with 29 C.F.R. § 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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. 2021000638 6 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 (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2021000638 7 Any supporting documentation must be submitted together with the 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 March 14, 2022 Date