0120082207
10-25-2010
Shirley Fanuiel, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Shirley Fanuiel,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120082207
Hearing No. 460200800049X
Agency No. ARCEGALV05NOV00112
DECISION
On March 31, 2008, Complainant filed an appeal from the Agency's March 10, 2008, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, we VACATE and REMAND the Agency's decision.
ISSUE PRESENTED
Whether the EEOC Administrative Judge (AJ) properly denied Complainant's request for a hearing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Regional Economist, GS-12, in the Planning Section, Planning and Environmental Branch, U.S. Army Corps of Engineers, in Galveston, Texas. On March 9, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal1 for prior protected EEO activity when:
1. on December 5, 2006, she received a level 4 (fair) performance evaluation for the rating period of November 1, 2005 through October 31, 2006; and
2. the [performance evaluation] was given to her seven days after the [Agency's] Office of Investigation and Resolution Division, conducted a Fact-Finding Conference on November 28, 2006, to investigate [Complainant's previous March 2, 2006 EEO complaint].
After the Agency completed its investigation, Complainant requested a hearing but the AJ dismissed the hearing request on the grounds that she failed to request a hearing within the time period specified in 29 C.F.R. � 1614.108(f). Specifically, the AJ found that Complainant was notified by letter dated August 8, 2007, from the Agency that the investigation was completed. The AJ found that the letter advised Complainant that she had 30 calendar days from the receipt of the letter to request a hearing before an AJ or a final decision from the Agency. In this regard, the AJ found that Complainant's non-attorney representative received the letter on September 27, 2007, which was confirmed by postal return receipt card. Therefore, the AJ found that Complainant's December 11, 2007 hearing request was untimely since the deadline for her to request the hearing was October 28, 2007. As a result, the AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
On Appeal, Complainant contended that the AJ erroneously denied her hearing request. In this regard, Complainant contended that the Agency never sent a letter to her or her non-attorney representative informing her of her right to proceed with a hearing before an AJ. Complainant also contended that the Agency never sent her the ROI. Specifically, Complainant contended that her non-attorney representative on September 27, 2007, received a box from the Agency, which contained 333 pages of documents along with a fact-finding conference transcript. Complainant contended that the Agency's letter dated August 8, 2007, advising her of the right to request a hearing, was not included in the box as the Agency alleged. As such, Complainant contended that she was not aware that she had 30 days from receipt of the box to request a hearing.
In response, the Agency contended that Complainant did in fact receive the Agency's August 8, 2007 letter advising her of her right to request a hearing on September 27, 2007. In this regard, the Agency noted that, by affidavit, the EEO Officer stated that she included the August 8, 2007 letter and ROI in the box that Complainant's non-attorney representative received on September 27, 2007. The Agency further contended that both the letter and ROI were sent to Complainant's non-attorney representative by certified mail with the postal return receipt signed.
ANALYSIS AND FINDINGS
We address Complainant's contention that she was wrongfully denied a hearing. EEOC Regulation 29 C.F.R. � 1614.108(f) requires that the Agency provide Complainant with a copy of the ROI and a notice of her right to request a hearing from an AJ or a decision from the Agency within 30 days of receipt of the ROI and notice. On appeal, the Agency contended that Complainant's representative, who is not an attorney, received the ROI along with the August 8, 2007 notice of the right to request a hearing. However, the Agency did not dispute Complainant's contention that she never received the August 8, 2007 notice or ROI. Although the Agency may have mailed a copy of the hearing rights to Complainant's non-attorney representative, the Commission has previously held that receipt of a document by a non-attorney representative is not sufficient to establish constructive notice on the part of a Complainant. See Scroggins v. USPS, EEOC Request No. 05901153 (June 18, 1991). As such, we cannot find that Complainant was actually provided with the notice to request a hearing in accordance 29 C.F.R. � 1614.108(f). Therefore, we find that the AJ wrongfully denied Complainant's hearing request.2
CONCLUSION
The Agency's final decision finding no discrimination is VACATED and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER herein.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC Houston 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. W 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
___10/25/10_______________
Date
1 In her formal complaint, Complainant alleged discrimination on the bases of race (African- American) and age in addition to reprisal. The Agency's final decision, however, only addressed reprisal.
2 Since we are remanding the case back to the Agency for the issuance of ROI and Complainant's right to request a hearing, we do not address the merits of the alleged actions at this time.
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0120082207
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082207