0520140544
03-25-2015
Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520140544
Appeal No. 0120120679
Hearing No. 541-2011-00090X
Agency No. 200P06662010102025
DENIAL
The Agency timely requested reconsideration of the decision in Complainant v. Department of Veterans Affairs, EEOC Appeal No. 0120120679 (June 27, 2014). 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(c). For the following reasons, the Agency's request for reconsideration is DENIED.
BACKGROUND
In the appellate decision, Complainant, a Housekeeping Aid, WG/2 at the Agency's VA Medical Center in Cheyenne, Wyoming alleged discrimination on the bases of disability and reprisal when she was not selected for a series of vacant positions, denied reasonable accommodation, and subjected to a hostile work environment. The AJ assigned to the case dismissed Complainant's hearing request as a sanction for failing to respond to the Agency's "Motion to Dismiss as Moot, or Alternatively, Motion for Summary Judgment (Agency's Motion). The AJ then remanded Complainant's case to the Agency for the issuance of a final decision pursuant to 29 C.F.R. � 1614.110(b).
Per the AJ's order, the Agency issued a decision, dated September 8, 2001, in which it dismissed some of Complainant's claims for containing procedural defects and found that Complainant failed to prove discrimination as alleged regarding the non-dismissed claims. Complainant thereafter filed an appeal. The issue presented on appeal was whether the AJ properly dismissed Complainant's hearing request as a sanction for failure to comply with an AJ order. The Commission found that the AJ's order to dismiss Complainant's hearing request was not proper because there was no indication in the AJ's decision or the evidentiary record that Complainant failed to comply with an order issued by the AJ. Nor was there information in the file indicating that the AJ issued Complainant, the presumed non-complying party, the required Notice to Show Cause. The Commission ordered the Agency to submit to the Hearings Unit of the appropriate EEOC field office the request for a hearing within fifteen calendar days.
REQUEST FOR RECONSIDERATION CONTENTIONS
The Agency in its request for reconsideration asserts that the appellate decision involved a clearly erroneous interpretation of material fact. The Agency asserts that the Administrative Judge entered an order granting the Agency's motion to dismiss based on mootness. The Agency maintains that the Commission as well as its own Office of Employment Discrimination Complaint Adjudication (OEDCA) misinterpreted the AJ's order dismissing the complaint as an order dismissing the hearing request only. The Agency maintains that instead of OEDCA appealing the AJ's decision or accepting it, the OEDCA treated the order as dismissing the hearing request only, and issued a decision on the merits with respect to Complainant's claim that the Agency failed to reasonably accommodate her disability. The Agency argues that it gave Complainant the benefit of a decision on the merits and that her appeal was from that decision. The Agency asserts that if the appellate decision is allowed to stand, it will have a substantial impact on the operations of the Agency. Specifically, the Agency's defense at hearing will be unduly prejudiced because three of the four Agency witnesses are now retired; and consequently, cannot be compelled to testify.
ANALYSIS AND FINDINGS
After reviewing 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(c), and it is the decision of the Commission to deny the request. We find that the Agency failed to show that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the agency. A review of the AJ's Order clearly indicates that she only dismissed the Complainant's hearing request, not her complaint on the grounds of mootness. The AJ remanded the matter to the Agency for the issuance of a final decision. In accordance the AJ's Order, the Agency issued a final decision. We find no credible evidence to support the Agency's contention that the AJ dismissed Complainant's complaint on the grounds that it was moot, and that its own OEDCA and the previous decision misinterpreted the AJ's decision. Accordingly, the decision in EEOC Appeal No. 0120120679 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 Hearings Unit of the appropriate EEOC field office 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 (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
___3/25/15_______________
Date
2
0520140544
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520140544