Les B.,1 Complainant,v.Ajit V. Pai, Chairman, Federal Communications Commission, Agency.

Equal Employment Opportunity Commission

Sep 25, 2019

0120182021 (E.E.O.C. Sep. 25, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Les B.,1 Complainant, v. Ajit V. Pai, Chairman, Federal Communications Commission, Agency. Appeal No. 0120182021 Agency No. FCC-EEO-17-14 DECISION On May 24, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 26, 2018, final decision concerning his 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. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS this matter for processing in accordance with the ORDER below. ISSUES PRESENTED Whether the Agency should have issued a final decision after being notified that Complainant wanted his complaint to proceed to a hearing before an EEOC Administrative Judge, and whether the Agency’s actions contributed to Complainant improperly requesting a hearing by providing the wrong address to him to submit his hearing request. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronics Engineer (GS-0855-13) at the Agency’s Enforcement Bureau in New York, New York. On July 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the 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. 0120182021 2 bases of race (African-American), color (Black), and reprisal for prior protected EEO activity when his supervisor harassed him by issuing him a disciplinary warning and other actions after he contacted an Equal Employment Opportunity Counselor. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On January 8, 2018, A1, who worked in the Agency’s Office of Workplace Diversity (OWD), emailed Complainant a copy of the Report of Investigation (ROI) and mailed him a letter notifying him of his right to request either a hearing before an Administrative Judge or a final decision. The letter provided Complainant with a hearing request form and instructed him, should he elect a hearing, to send the form to the EEOC’s Office of Federal Operations (OFO). After an exchange of emails with A1, Complainant was informed that the proper place to submit his request form was not OFO, but the EEOC’s New York District office (NYDO), and to forward a copy to her. On January 10, 2018, Complainant submitted a copy of his hearing request form to A1 but not to the NYDO. On March 26, 2018, A1 informed Complainant that she had determined that he had not yet filed a request for a hearing with the Commission. Complainant confirmed this and stated that he had only submitted a request to her. On April 5, 2018, Complainant’s counsel sent a letter transmitting Complainant’s hearing request to both OFO in Washington, D.C., and the NYDO. On April 26, 2018, OWD issued its final decision (FAD) finding no discrimination or reprisal. On May 22, 2018, the NYDO acknowledged receiving the hearing request. On July 12, 2018, the NYDO opened docket number 520-2018-00464X for Complainant’s claims-but it closed the docket, sua sponte, on July 17, 2018, because of the issuance of the FAD. On appeal, Complainant’s attorney argues that his client has stated repeatedly that he wanted a hearing in this case, and not a FAD, and that the Agency was on notice on January 10, 2018, more than 3 months before the FAD was issued on Apri126, 2018 that he had wanted a hearing. According to the attorney, “the only conclusion that can be reached is that the issuance of the FAD was premature and must be deemed a nullity and of no force or effect.” In response, the Agency, in pertinent part, concedes that the OWD provided Complainant with two different addresses but maintained that Complainant should have mailed his hearing request to at least one of those addresses or contacted the OWD for clarification, instead of merely submitting the request to the OWD. The Agency also maintained that, unlike the complainant’s in the precedent cited by Complainant, it was unaware that Complainant had not filed his request with the EEOC and therefore had no obligation to forward Complainant’s request to the NYDO. Nevertheless, the Agency indicated that it would rescind the FAD, if the Commission determined that it was issued prematurely. 0120182021 3 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(h) provides that “the complainant may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the agency’s acknowledgment letter. The complainant shall send a copy of the request for a hearing to the agency EEO office.” We note that prior to changes to EEOC regulations in 1999, hearing requests were sent only to the agency, which then forwarded them to the appropriate EEOC hearings unit. When publishing the final rule change in 1999, the Commission explained that the purpose of the change to having the requests sent directly to the EEOC hearings units was “to eliminate delays.” Federal Register, Vol. 64, No. 132 (July 12, 1999), 37649. The Commission added, “[i]f any agency receives a request for a hearing that has not also been submitted to EEOC, the agency should forward the request along with the file to EEOC . . .” Id.2 Notwithstanding the procedural history of this matter, we find it reasonable to conclude that there is no dispute that before the Agency issued its FAD on April 26, 2018, it knew or had reason to suspect that Complainant either had already submitted a request or was in the process of submitting a request to the NYDO for a hearing. We note in this regard that Complainant’s discussions with A1 indicated that he wanted a hearing. Moreover, the Agency, in its brief, stated that on March 26, 2018, after discovering that Complainant’s hearing request had not been docketed on the Commission’s Federal Sector EEO Portal, A1 contacted Complainant to confirm that he had filed his hearing request with the Commission. Upon learning that Complainant had not filed a request with the EEOC, A1 resent the original January 2018 letter to Complainant, again explained that he should request a hearing directly from the Commission and requested his attorney’s contact information.3 Later that day, A1 sent another message to Complainant advising him that because he had improperly filed his hearing request and the 30-day deadline to request a hearing had passed, he should discuss the matter with his attorney. Two days later, A1 again followed up with Complainant asking whether he or his attorney would “submit the hearing request and request for an extension.” Complainant replied to A1 stating that “[he] spoke to [his attorney on March 27] and he will request an extension and submit the hearing request.” On April 5, 2018, Complainant’s counsel filed a copy of the hearing request form with both NYDO and OFO. EEOC Regulation 29 C.F.R. § 1614.604(c) provides that the time limits in this part are subject to waiver, estoppel and equitable tolling. Based on the specific facts presented here, we find that Complainant was given conflicting and erroneous information initially as to where to file his hearing request, and that it was reasonable that he might have improperly submitted his request. Subsequently, he retained an attorney, and discovered that he had not submitted a request to the NYDO. We find that it is undisputed that, on March 26, 2018, the Agency was informed that Complainant’s attorney would be submitting a request and seeking an extension. 2 In its response, the Agency notes that the regulatory language does not mandate that an agency forward a request to the Commission but only states that the agency should forward the request. 3 At some point after he submitted the hearing request form to A1, Complainant had retained an attorney. 0120182021 4 It is also undisputed that three weeks before issuing its FAD, Complainant’s hearing request was filed with the NYDO. In the interest of fairness and equity, we will VACATE the Agency’s FAD and REMAND this matter for appropriate disposition in accordance with 29 C.F.R. § 1614.109 and the Order below. ORDER The Agency shall submit to the Hearings Unit of the EEOC’s New York District Office a request for a hearing within 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 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 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 CFR § 1614.503(f) for enforcement by that agency. 0120182021 5 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. 0120182021 6 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 September 25, 2019 Date