0120120996
10-16-2015
Berenice R.,1 Complainant, v. Judge John D. Bates, Director, Administrative Office of the U.S. Courts, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Berenice R.,1
Complainant,
v.
Judge John D. Bates,
Director,
Administrative Office of the U.S. Courts,
Agency.
Appeal No. 0120120996
DECISION
On December 28, 2011, Complainant filed an appeal from the Agency's December 8, 2011, 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 Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES, the Agency's final decision and REMANDS this matter to the Agency.
ISSUES PRESENTED
Whether the Agency provided Complainant with the appropriate rights after conducting a supplemental investigation, and whether it failed to allow Complainant the opportunity to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
BACKGROUND
At the time of the events giving rise to her EEO complaint, Complainant was working as a Supervisory Program Analyst in the Agency's Office of Judges Program/Magistrate Judges Division in Washington, D.C. Complainant started working in the supervisory position on February 12, 2001, at the Pay Band (PB)-2E level, the equivalent of the grade level GS-14. The position had previously been occupied by an African American male, who retired from the Agency in 2001, at the PB-2F level, the equivalent of a GS-15. On January 6, 2005, Complainant filed an EEO complaint, claiming that the Agency discriminated against her on the bases of race (Caucasian) and sex (female). The Agency framed the issue as alleging that Complainant was discriminated against on the bases of race and sex when Agency management failed to promote her to the PB-2F level. The Agency did not mention an EPA claim.
At the conclusion of the investigation into her complaint, Complainant was provided a letter dated June 2, 2005, which contained a Report of Investigation (ROI) and notice that she could request either a hearing before an "independent hearing officer" or elect an "immediate final agency decision." In accordance with Complainant's request, the Agency issued an immediate final decision (FAD1). In FAD1, the Agency determined that Complainant failed to prove, by a preponderance of the evidence, that she was subjected to discrimination in violation of Title VII as alleged. The Agency also, for the first time, mentioned Complainant's EPA claim when it dismissed it as being untimely; consequently, there was no determination rendered on the merits. Complainant filed an appeal to the Commission.
In EEOC Appeal No. 0120061807 (Sept. 10, 2010), the Commission vacated the Agency's FAD1 and remanded the matter for a supplemental investigation. In so doing, the Commission found that Complainant clearly raised a claim under the EPA and that the Agency improperly failed to address that claim on its merits. The Commission ordered the Agency to issue to Complainant a copy of the supplemented investigative file and to also notify Complainant of her "appropriate rights."
The Agency conducted a supplemental investigation and issued a final agency decision (FAD2) on December 8, 2011. The Agency found that Complainant failed to establish a prima facie case of sex discrimination "in violation of the EPA." Complainant appealed FAD2 to the Commission. Complainant submitted an untimely brief on appeal. The Agency did not submit any arguments on appeal.
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").
The Commission finds it undisputed that the Administrative Office of the United States Courts is part of the judicial branch. Riley v. Administrative Office of the United States Courts, EEOC Appeal No. 01A54963 (Sept. 8, 2005); DeLuca v. U.S. Tax Court, EEOC Appeal No. 01A03404 (Aug 22, 2000); Freytag v. Commission of Internal Revenue, 501 U.S. 868 (1991). EEOC Regulation 29 C.F.R. � 1614.103(b)(4) provides that all units of the judicial branch of the federal government having positions in the competitive service are covered under EEOC regulations, except for complaints brought under the Rehabilitation Act. Accordingly, the Agency is required to comply with our regulations.
EEOC Regulation 29 C.F.R. � 1614.108(f) provides in relevant part that the Agency shall provide complainants with a copy of the investigative file, and shall notify complainants, that within 30 days of receipt of the investigative file, they have the right to request a hearing and decision from an EEOC AJ or may request an immediate final decision pursuant to � 1614.110 from the agency with which the complaint was filed.
In this case, we find no persuasive evidence that Complainant was offered the opportunity to choose between a hearing before an EEOC AJ or a final agency decision. Nothing in the record shows that Complainant was notified at the conclusion of the supplemental investigation of these options. We note that although the investigation was a supplemental one, the Commission ordered that Complainant be provided with "appropriate rights." Because there is no evidence in the record that this occurred, we VACATE the Agency's FAD2 and order the Agency to provide Complainant with the requisite rights.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE FAD2 and remand the complaint to the Agency in accordance with the Order below.
ORDER
The Agency, within 30 days of the date this decision becomes final, shall provide Complainant with a copy of the entire investigative file (both initial ROI and supplemental investigation) and a notice of her right to a hearing pursuant to 29 C.F.R. � 1614.108(f). Following the issuance of this notice, the Agency shall process Complainant's complaint in accordance with applicable EEOC regulations. A copy of the notice shall be provided to the Compliance Officer as set forth below.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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:
______________________________ Carlto
Carlton M. Hadden, Director
Office of Federal Operations
__10/16/15________________
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.
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