0120110344
07-03-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120110344
Agency No. DIA000302008
DECISION
On October 13, 2010, Complainant filed an appeal from the Agency's September 14, 2010, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES and the Agency's final decision and REMANDS the case for a hearing before an EEOC Administrative Judge (AJ).
ISSUES PRESENTED
1) Whether Complainant timely appealed the Agency's decision to the Commission; and
2) Whether the Agency failed to appropriately notify Complainant regarding her right to request a hearing before an AJ.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Human Resources Manager, GG-0201-12, Directorate for Human Capital, at the Agency's facility in Washington, District of Columbia. On September 16, 2008, Complainant filed an EEO complaint alleging that the Agency harassed her on the bases of disability (chronic back pain) and reprisal for prior protected EEO activity under the Rehabilitation Act when:
1. in October 2007, she was accused of not having any medical documents on file with the Agency;
2. on November 19, 2007, her request for leave on November 21, 2007, was disapproved;
3. on November 29, 2007, she was issued a Letter of Instruction (LOI);
4. on December 10, 2007, she was denied approval to participate in the Civilian Fitness Program;
5. in January 2008, management contacted her doctor without her consent;
6. on January 16, 2008, she was told she better not leave the office because her doctor's note was insufficient;
7. on February 21, 2008, she was denied participation in the Leave Bank;
8. in April 2008, she did not receive a performance appraisal/rating;
9. on April 24, 2008, she was issued a Warning Notice of Unsatisfactory Performance Rating;
10. on June 26, 2008, management did not provide her with assistance when she fell to the ground;
11. in July 2008, she learned that the Department of Labor did not receive her paperwork from her supervisor; and
12. on July 9, 2008, she was forced to resign.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. The Agency issued a Final Agency Decision on September 14, 2010.
Preliminarily, the Agency found that Complainant first contacted the Equal Opportunity ("EO") office on December 19, 2007, and her initial interview occurred on April 23, 2008. The Agency determined that, for purposes of timeliness, the 45-day time frame preceding Complainant's initial EEO contact on December 19, 2007, began on November 4, 2007. The Agency found that Complainant failed to alleged or show that matters beyond her control prevented her from timely filing an EEO complaint about discrete matters that occurred before
November 4, 2007. Therefore, the Agency found that only discrete acts that allegedly occurred on or after November 4, 2007, were actionable as part of the instant EEO complaint. As such, the Agency dismissed claim 1, however, it noted that it would be considered background evidence for the harassment claim.
Among other things, the Agency found that assuming, arguendo, Complainant was an individual with a disability, it provided Complainant with a reasonable accommodation when she was permitted to take leave from January 2008 until April 2008.
Further, the Agency concluded that Complainant failed to establish that she was subjected to disparate treatment with regard to each of the timely claims and that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Agency further found that Complainant failed to demonstrate that the Agency's actions were based on pretext for discrimination.
Turning to Complainant's harassment claim, the Agency found that Complainant failed to demonstrate that she was subjected to harassment as alleged because the incidents were not severe or pervasive enough to constitute a hostile work environment.
With regard to Complainant constructive discharge claim, the Agency found that Complainant voluntarily left her position and was resigning for "personal reasons." The Agency found that Complainant failed to show that she was subjected to harassment or that management's actions were based on her protected classes. As such, the Agency found that Complainant failed to demonstrate that she was constructively discharged. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she was not provided with notice of the right to request a hearing upon receipt of the ROI. Complainant argues that she requested a hearing prior to the issuance of the ROI. Complainant requests that the Commission remand the complaint for a hearing. In the alternative, Complainant also argued the merits of her case on appeal.
In response, the Agency argues that Complainant's appeal is untimely. Specifically, the Agency argues that it provided a copy of the FAD to Complainant's attorney. According to the Agency, Complainant failed to file her appeal with the Commission within 30 days of when her attorney received the FAD. The Agency also argues that if the appeal is deemed timely, its FAD should be upheld. We note, however, that the Agency is silent on the issues of whether Complainant requested a hearing before she received the ROI or whether the Agency failed to provide her with notice of her right to request a hearing after it issued the ROI.
ANALYSIS AND FINDINGS
Untimely Appeal
Preliminarily, we note the Agency contention that Complainant's appeal is untimely. Specifically, the Agency argues that it issued the FAD on September 14, 2010. On September 15, 2010, the Agency maintains that the Agency counsel provided the FAD to Complainant's attorney of record. The FAD was also sent by the Agency to Complainant's attorney by Certified Mail Return Receipt Requested, on September 14, 2010. Therefore, the Agency argues that Complainant's appeal was due by October 15, 2010; thirty (30) days after Complainant's attorney received the FAD from the Agency's counsel. The Agency argues that the FAD explicitly informed Complainant of the time limits for filing an appeal and that Complainant failed to offer any justification for the Agency receiving notice of the appeal on October 18, 2010.
The Commission's regulations provide that an appeal from an Agency decision must be filed with the Commission within 30 days from receipt of the decision. 29 C.F.R. � 1614.402(a). If a complainant does not file an appeal within the time limits, the appeal shall be dismissed as untimely. 29 C.F.R. � 1614.403(c). A document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
The record reflects that Complainant filed her appeal with the Commission via fax on October 13, 2010. Further, Complainant mailed her appeal to the Commission, which was postmarked October 13, 2010. Assuming, as indicated by the Agency, that Complainant's attorney was provided a copy of the FAD on September 15, 2010, we find that Complainant timely filed her appeal with the Commission on October 13, 2010. Furthermore, we find that the Agency's contention that the date it received notice of the appeal being filed should be deemed the date the appeal was in fact filed is without merit and not supported by any regulation or legal precedent.
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 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In the instant matter, we find that the Agency has not met its burden. As such, we find that Complainant's appeal is timely.
Request for a Hearing
On appeal, Complainant argues that upon receipt of the ROI, she did not receive any notification regarding her ability to request a hearing before an EEOC Administrative Judge or request that the Agency issue a FAD. Complainant also indicated that she had already informed the Agency of her desire for a hearing prior to the issuance of the FAD. Complainant requests that the Commission remand the case to an AJ for a hearing. As noted above, the Agency offered no response to Complainant's assertions.
When a Complainant receives an ROI, Agencies are require to "notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an administrative judge or may request" a final agency decision. 29 C.F.R. � 1614.108(f)
Here, we find the record is devoid of any evidence that the Agency provided the required notification when it provided Complainant or her representative the ROI. We note that the Agency had the opportunity to respond on appeal but failed to do so. As such, we find that Complainant was not provided an opportunity to request a hearing before an AJ. Accordingly, we VACATE the Agency's final decision and REMAND the case for 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 Washington Field Office 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 hold a hearing and 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (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
_7/3/14_________________
Date
2
0120110344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110344