0120102914
12-08-2010
Diann Hall, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Diann Hall,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120102914
Hearing No. 510-2010-00167X
Agency No. 200I-0573-2009102748
DECISION
On June 19, 2010, Complainant filed an appeal from the Agency's May 12, 2010 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nurse Case Manager at a Gainesville, Florida facility of the Agency. In a formal EEO complaint, dated July 29, 2009, Complainant alleged that the Agency discriminated against her on the bases of race (African American) and age (over 40) when, between 2005 and 2009, her supervisor (S1) consistently changed her work assignments but did not ask others to "float" to different teams. Specifically, Complainant alleged that (1) in July 2006, S1 changed her duties from working on a "Medicine Unit" to performing Medical Care Cost Fund/insurance functions, (2) on April 8, 2009, S1 assigned her to cover someone on the Medicine Intensive Care Unit and Neurology Team, (3) on April 21, 2009, S1 changed Complainant's assignment from "psych case management" to "medical case management," and (4) from May 4, 2009 to July 4, 2009, S1 assigned Complainant to work with the Medicine Unit "Gold Team." Further, Complainant alleged that S1 subjected her to hostile work environment harassment by acting as alleged in (1) through (4), and by attempting to prevent her from obtaining permanent Agency employment.
In a Notice of Partial Acceptance, dated October 13, 2009, the Agency dismissed (1) pursuant to 29 C.F.R. � 1614.107(a)(2) (as an untimely-raised discrete event) and accepted the remainder of the complaint for investigation.
At the conclusion of its investigation, accompanied by a letter dated January 29, 20101, the Agency provided Complainant with a copy of the report of investigation, and notice of her right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested the former2, however, the Agency issued a final decision stating "[C]omplainant waived the right to request a hearing by failing to respond to the Notice of Advisement of Rights dated January 29, 2010." In its May 12 final decision, the Agency reiterated its dismissal of (1) as a discrete act but noted that it could be considered as part of Complainant's harassment claim. Further, the Agency concluded that Complainant failed to prove that the actions as alleged rose to the level of a hostile work environment or that they were based on discriminatory motives as alleged. The instant appeal from Complainant followed, in which Complainant stated that the Agency failed to show that discrimination did not occur and she is unsure why she did not receive a hearing.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.110(b), an Agency "shall take final action by issuing a final decision" when a complainant does not reply to a notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. However, that is not the case here, the EEOC Miami District Office has record of an "open" hearing request docketed on February 22, 2010 for the instant complaint. The notice of right to request a hearing was dated January 29, 2010. On appeal, Complainant questioned why she did not receive a hearing and the Agency issued a final decision on the merits. We find that it did so inappropriately. Based on the above, we find that we must VACATE the Agency's final decision and REMAND the instant matter for further processing in accordance with this decision and the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Miami District 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.
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
___December 8, 2010_____
Date
1 The January 29, 2010 letter was received by Complainant on February 2, 2010.
2 We note that Hall v. Dep't of Veterans Affairs, EEOC Hearing No. 510-2010-00167X is in "Open" status with the EEOC Miami District Office. It involves a hearing request docketed on February 22, 2010.
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0120102914
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102914