0520110446
10-28-2011
Catherine Lawson, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Catherine Lawson,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Request No. 0520110446
Appeal No. 0120072889
Agency No. ARS-2007-00091
DENIAL
The Agency timely requested reconsideration of the decision in Catherine
Lawson v. Department of Agriculture, EEOC Appeal No. 0120072889 (April
6, 2011). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(b).
BACKGROUND
In the previous decision, the Commission vacated the final agency
decision issued on May 5, 2007, which found that Complainant had not been
discriminated against on the bases of age, disability, and reprisal when
the Agency increased her work hours from 13 hours per week to 20 hours
when she could only work for 13 hours due to her deteriorating health.
The previous decision remanded Complainant’s November 29, 2006,
complaint to the Agency to be forwarded to the appropriate Commission
Hearings Unit for the assignment of an Administrative Judge (AJ).
We found that the Agency had not shown that it had properly served on
Complainant notice of her right to request a hearing. The Agency had
issued the Report of Investigation on February 12, 2007. On April 5,
2007, Complainant’s attorney notified the Agency that Complainant
had not received her notice of her right to request a hearing, and he
specifically requested an administrative hearing. Our decision concluded
that the Agency had not provided evidence on appeal that Complainant
was in actual receipt of the notice of her right to request a hearing,
and that the final agency decision had erred when it did not address
the issue of her outstanding hearing request before making finding on
the merits of her complaint. We noted that the Agency not provided
any response in opposition to Complainant’s contentions on appeal.
The decision therefore vacated the final agency decision and remanded
it to the Agency for further action, and the submission of the complaint
to a Commission Hearings Unit.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the Agency argued that the previous
decision was clearly erroneous in its conclusion that Complainant did not
receive her notice of her right to request a hearing. For the first time,
it provided a copy of the express delivery tracking sheet, and a copy of
the letter sent on February 12, 2007, showing that the letter and the
Report of Investigation had been received at Complainant’s address
of record on February 13, 2007. It also submitted an affidavit from
the Director of the Office of Outreach, Diversity and Equal Opportunity
for the Agricultural Research Service, averring that it was the usual
practice of the Agency to send the notice of the right to request a
hearing with the Report of Investigation, and that it had been done
in Complainant’s case. The Agency argued that the Commission had
improperly relied on Complainant’s appeal statement, which contained
an incorrect date on which she had received her Report of Investigation,
November 21, 2006, instead of February 13, 2007.
The Agency also argued that the previous decision would have a substantial
impact on the practices and operations of the Agency, claiming that
the decision imposes a requirement that the Agency would “not only
[have to] document receipt of information sent to a complainant, but
somehow document the contents of what was sent.” It also argued that
it would incur duplicative expenses and have to expend additional time
and resources on a case where it has “already properly considered the
matter” and made a determination.
In a letter dated April 20, 2011, Complainant also submitted a request for
reconsideration, out of what seems to have been an abundance of caution.
Complainant indicated her confusion with the outcome of the previous
decision. She also raised arguments which may pertain to the outcome
in another EEO complaint she had filed.1
DETERMINATION
The Agency, for the first time in the processing of Complainant’s
appeal, has provided the Commission with a document which purports
to show when Complainant received the Report of Investigation and
the Notice of her Right to Request a Hearing. The Agency provided
a copy of the February 12, 2007, letter and the tracking sheet from
the express delivery service it used. We find that the Agency’s
submission is untimely made. We have consistently held that information
in support of a party’s position which was available at the time of
the initial appeal must be submitted at the time of the initial appeal.
Submission of such evidence as part of a request for reconsideration
is simply too late. See Lopez v. Dep’t of Agriculture, EEOC Request
No. 0520070736 (Aug. 20, 2007). We may accept new evidence, however,
if the parties affirmatively demonstrate it was not previously available
despite the exercise of due diligence. Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (Nov. 9, 1999),
§ VI(A)(3); Est. of Petersen v. Dep’t of Transportation, EEOC Appeal
No. 07A50016 (Sept. 21, 2005). Here, the Agency has not demonstrated
the evidence regarding Complainant’s receipt of her Notice of Right
to Request a Hearing was not previously available.
The Agency clearly had possession of the proof of Complainant’s
receipt of a delivery on February 13, 2007, but it was negligent in
producing that document when it was required to provide the record to the
Commission once it was notified that an appeal had been filed. Under 29
C.F.R. § 1614.403(e), an Agency is required to provide the complete
complaint file within 30 days of the date it has been notified that an
appeal was filed. That includes not only the Report of Investigation,
as was submitted in this case, but also any supporting documents included
in any administrative files, which in this case would include copies of
correspondence served on a complainant and a complainant’s designated
representative, proof of service, and proof of receipt, if available.
We note that a citation in the final agency decision to the date the
Report of Investigation was received by Complainant is not the same as
evidentiary proof establishing such.
We also note that nowhere in our previous decision did we rely on the
erroneous date cited by Complainant in her appeal statement referencing
November 21, 2006, as the date she received her Report of Investigation.
The previous decision correctly notes the November 29, 2006, date for the
filing of the formal complaint, and February 12, 2007, for the date of
the issuance of the Report of Investigation. We found that the Agency
had not shown that Complainant had received her notice of right to file
in February 2007 when the Report of Investigation was issued. We relied
on the representations in the complaint file submitted by the Agency,
and were not confused by Complainant’s error.
With respect to the Agency’s argument that the Commission is newly
requiring it to document the receipt of information sent to complainants,
and the contents of what was sent, that is exactly what is required
of agencies already. If an agency wishes to prove that a complainant
received a document on a date certain, it may rely on the presumption of
delivery when using a certificate of service, it may document receipt
through the use of certified, return receipt mail, or it may require a
signature of receipt when using a commercial delivery service. While our
regulations do not mandate the use of any of the above, if an agency
wishes to rely on an argument that a complainant received a mailing, it
will need to provide some form of acceptable proof. This is nothing more,
and nothing less, than what would be required of an agency were it to
make an argument regarding receipt of correspondence by an opposing party
to any federal or state court in which it appears. It is well-settled
in Commission cases that where there is an issue of timeliness, “[a]n
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness.” Guy v. Dep’t of
Energy, EEOC Request No. 05930703 (January 4, 1994); Williams v. Dep’t
of Defense, EEOC Request No. 05920506 (August 25, 1992).
We further find that remanding this case would not have a substantial
impact on the policies and practices of the Agency, as per its argument
that it would incur duplicative expenses and have to expend additional
time and resources on a case where it has “already properly considered
the matter” and made a determination. Under that reasoning, the
Commission, in its appeal process, would never be able to remand a
case where an agency has already considered the merits of a complaint.
Surely that is not what the Agency meant to suggest, and we find this
argument to be without merit.
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. § 1614.405(b), and it is the decision of the Commission to
DENY the request. The decision in EEOC Appeal No. 0120072889 remains
the Commission's decision. There is no further right of administrative
appeal on the decision of the Commission on this request. The Agency
shall comply with the Order as set forth below.
ORDER
The Agency shall submit to the appropriate EEOC Hearings Unit the
request for a hearing within fifteen (15) calendar days of the date this
decision becomes final. The Agency is directed to submit a copy of the
complaint file 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 issue a decision on
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 (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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the
request and the civil action must be filed within the time limits as
stated in the paragraph above (“Right to File a Civil Action”).
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 28, 2011
Date
1 Complainant filed a mixed-case complaint with respect to her termination
on February 20, 2007. She claimed that she had been discriminated against
on the bases of age, disability, and reprisal, when she was terminated
because of her inability to work the 20 hours per week of her part time
schedule, and did not provide medical documentation substantiating her
inability to do so. See Lawson v. Dep’t of Agriculture, EEOC Petition
No. 0320080100 (Oct. 8, 2008).
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0520110446
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520110446