Brandon D.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 13, 2020

2020003255 (E.E.O.C. Aug. 13, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brandon D.,1 Complainant, v. Robert Wilkie, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020003255 Agency No. 0705-XX08-01800515 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 24, 2020, final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Program Analyst, 0343, GS 11 at the Agency’s Operations and Support, VA Central Office in Washington, D.C. On February 2, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him and subjected him to a hostile work environment based on disability (post-traumatic stress disorder/PTSD, traumatic brain injury, rheumatoid arthritis, psoriatic arthritis, and lupus) and in reprisal for prior protected EEO activity. 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. 2020003255 2 After the investigation of the complaint, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. According to the Agency, Complainant failed to respond to the notice. On February 24, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant, through counsel, argues that the Agency erred in determining that he did not submit a hearing request. Complainant asserts that five days after he received a copy of the report of investigation on February 14, 2019, he submitted his hearing request via fax to the EEOC Washington Field Office (“WFO”) on February 19, 2019 and mailed a “hard copy” to the Agency. Complainant further asserts that his attorney subsequently sent a notice of change of address to the EEOC WFO and the Agency on July 1, 2019. Complainant indicates that the July 1, 2019 notice noted that he had filed a hearing request on February 19, 2019. Nevertheless, Complainant asserts that the Agency improperly determined that he failed to indicate whether he wanted an AJ hearing and, consequently issued a final decision which was mailed to Complainant’s new address as provided in the July 1, 2019 notice. In support of his assertion, Complainant submits a copy of his hearing request dated and signed by him on February 19, 2019. Complainant also submits a copy of the July 1, 2019 notice to the Agency and the EEOC WFO which indicates that Complainant’s attorney submitted the notice on Complainant’s behalf. The notice states, in pertinent part, “EEOC No. Pending (Hearing request filed February 19, 2019).” Additionally, Complainant submits a sworn affidavit, dated April 22, 2020, asserting that he submitted a hearing request on February 19, 2019, and that he submitted the hearing request to the Agency and the EEOC WFO. ANALYSIS AND FINDINGS Given the specific circumstances of this case, we find that Complainant has produced sufficient evidence that he requested a hearing for the complaint at issue. We acknowledge that Complainant has not provided any proof that he mailed or faxed the February 19, 2019 hearing request. However, we note that Complainant’s July 1, 2019 notice does indicate that Complainant had filed a hearing request on February 19, 2019 which was currently pending. Therefore, the Agency had some indication that Complainant had elected a hearing, and the Agency could have further inquired about the status of Complainant’s hearing request but waited an additional seven months to issue a final decision on February 24, 2020. The Agency’s February 24, 2020 final decision is VACATED. This matter is REMANDED to the Agency, for submission to the appropriate Hearings Unit, as detailed in the ORDER below. 2020003255 3 ORDER The Agency shall submit to the Hearings Unit of the EEOC’s Washington Field Office a request for hearing on Complainant’s behalf within fifteen (15) calendar days of the date this decision is issued. The Agency is directed to submit a copy of the complaint file, as well as a copy of this appellate decision, to the EEOC Hearings Unit 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 process 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. 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. 2020003255 4 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. 2020003255 5 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 13, 2020 Date