01A22553
08-23-2002
Susan D. Jansson, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Susan D. Jansson v. Department of Justice
01A22553
08-23-02
.
Susan D. Jansson,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A22553
Agency No. A-00-1017
DECISION
Complainant filed an appeal from a final agency decision, dated
February 21, 2002, concerning her complaint of unlawful 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
appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the following
reasons, the Commission vacates and remands the agency's final decision.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a Legal Secretary, GS-7, at the agency's U.S. Attorney's Office, in
Eugene, Oregon. Complainant sought EEO counseling in August 1999 and,
subsequently, filed a formal complaint on May 24, 2000 claiming that she
was discriminated against on the basis of disability (permanent wrist
injury) when she was subjected to a hostile work environment, and when
the agency failed to reasonably accommodate her disability. Complainant
claimed that she had requested numerous reasonable accommodations of
the agency, which had not been granted or consistently implemented.
As evidence of the hostile work environment to which she was being
subjected, complainant detailed the following (accepted by the agency
for investigation):
1) the agency delayed, failed to respond, or provided inaccurate
information regarding the proper procedures for applying for Workers'
Compensation (OWCP);
2) complainant was informed that she would be fired if she could not
perform the duties of a Legal Secretary;
3) an agency official tape-recorded a telephone conversation he held
with her without her knowledge or consent;
4) complainant did not receive a performance award, which was given to
another employee instead, for work performed while the complainant was out
recovering from surgery (complainant subsequently withdrew this claim);
5) complainant was made to feel that her work performance was less than
expected and that she was not �carrying her weight� when critical remarks
were made about her performance;
6) complainant was required to provide medical documentation after surgery
in June 1998, and after requesting advanced sick leave in August 2000
(although she claimed that others were not required to do so);
7) a �demand� letter was hand-delivered to complainant's home while
she was out recuperating, discussing her absence from the office and
outlining various requirements for her to fulfill in order to receive
the leave and special employment benefits she had requested; and
8) supervisory personnel were required to forward to the Administrative
Officer copies of all e-mails complainant sent to any staff member
regarding her wrist injury.
At the conclusion of the investigation stage, complainant was not
provided a copy of the investigative file and informed of her right to
request a hearing before an EEOC Administrative Judge or alternatively,
to receive a final decision by the agency. Instead, the agency issued
a final agency decision (FAD) on February 21, 2002.
In its final decision, the agency analyzed complainant's complaint on
the merits, and concluded that she had not been discriminated against.
It provided the following appeal rights from its decision. As option #1,
the agency stated that complainant could �request reconsideration� of its
decision directly to the agency within 14 days of receipt of its decision.
As option #2, it specified that complainant could request a hearing
before an EEOC Administrative Judge (AJ) within 30 days of receipt of
its decision. Conversely, option #3 specified that if complainant did
not wish to have a hearing, �this decision becomes the agency's final
decision in this case,� and complainant could appeal the decision to
the Commission's Office of Federal Operations, again within 30 days
of receipt. Finally, option #4 gave complainant information on filing
an action in civil court within 90 days of receipt of the decision.
All the time frames ran concurrently with one another. Although the FAD
referenced a �Pilot Program,� the record does not contain any description
of such program or the way in which it may alter complainant's rights
and the time frames contained in 29 C.F.R. Part 1614.
Complainant first attempted to exercise option #1, requesting
reconsideration with the agency, by asking for a stay of the 14 day time
period so that she could retain and consult with a private attorney,
but was informed that an extension was not possible and that options #2
and 3 were still open to her. Complainant next attempted to exercise
option #2 and request a hearing from the Commission, and, following the
instructions provided in the FAD, sent her request to the Washington,
DC Field Office, although she was located in Eugene, Oregon and the
proper office to which to send her request would have been the Seattle,
Washington District Office. In the letter accompanying her request
for a hearing she also stated that she wished to appeal the FAD, so the
complainant's request was forwarded to the Office of Federal Operations
and was then docketed as an appeal. This is the posture of the case at
the time of this decision.
ANALYSIS AND FINDINGS
Agencies are directed under the regulations found at 29 C.F.R. Part
1614, and in EEOC Management Directive (MD) 110, November 9, 1999
for 29 C.F.R. Part 1614, in the proper procedure for processing
complaints of discrimination filed by federal applicants and employees.
That process specifies that agencies and employees have certain rights
and responsibilities and time frames to which they must adhere.
EEOC regulation 29 C.F.R. � 1614.105 specifies that an agency has
thirty (30) days from the date of contact to complete the informal,
pre-complaint counseling of an individual, and that this time frame may
only be extended by a maximum of sixty (60) days with the written consent
of the counselee. At the end of the counseling stage, a counselee is
issued a Notice of Right to File and, under 29 C.F.R. � 1614.106(b), the
individual has fifteen (15) days in which to file their formal complaint.
EEOC regulation 29 C.F.R. � 1614.108(e) specifies that an agency shall
complete its investigation within 180 days from the date of filing of
the complaint, and that an extension of up to 90 days may be obtained
upon the written consent of both parties. EEOC regulation 29 C.F.R. �
1614.108(f) further specifies that when an investigation is completed,
a complainant is to receive a copy of that investigative report, and to
be informed of their right to request either an administrative hearing
before a Commission Administrative Judge (AJ) (within thirty (30) days)
or to receive a final decision from the agency (FAD) on the record.
Only once an employee has made the election to receive a FAD on the
record should the agency proceed with issuing a decision, pursuant to
29 C.F.R. � 1614.110(b). Alternatively, only after an AJ has processed
the complaint, whether through holding a hearing or issuing a decision
on summary judgement on the record, should the agency issue an action
regarding its implementation of that decision under EEOC regulation 29
C.F.R. � 1614.110(a). Following the issuance of the final action of the
agency under either section of 29 C.F.R. � 1614.110, complainant then
has the right to request an appeal to the Office of Federal Operations
(OFO), as specified in 29 C.F.R. �� 1614.401, .402, .403.
The agency has not adhered to the time frames contained in 29 C.F.R. Part
1614 at many points throughout the processing of this case. Complainant
reportedly had difficulty in locating the name and contact information
for an EEO Counselor, although agencies are responsible for making this
information easily accessible and known to all employees and applicants.
Once complainant had located an EEO Counselor and initiated contact on
August 11, 1999, a counselor was not assigned to the case until October
1, 1999, which is already beyond the 30 day time frame contained in
the regulations. Further, the agency did not complete counseling
until May 2, 2000, nearly eight months from the initial contact date.
Complainant timely filed her formal complaint on May 24, 2000, but the
agency did not even accept her issues for investigation until April 18,
2001, well beyond the deadline for completing the investigation, much less
starting it. Once the agency considered the investigation to be complete,
it failed to issue complainant a full, complete and well-organized copy
of the investigative report and summary, along with the notification
of her right to choose between a hearing before a Commission AJ and
her right to choose an immediate final agency decision on the record,
under 29 C.F.R. � 1614.108(f).
In further violation of the regulations, the agency has put the �cart
before the horse,� and conflated the complainant's options following the
completion of the investigation into one step. In one fell swoop, it has
informed the complainant of the ability to request a hearing before an AJ,
to receive a final agency decision (which it had already issued), and to
request an appeal from OFO. Additionally, the agency has created the
14 day �reconsideration request,� made to itself, which exists nowhere
(in this form) in the regulations. Understandably, complainant was
confused as to the correct manner in which to �appeal� her complaint.
In her paperwork requesting a hearing, she both talks about wanting a
hearing and about appealing her decision. It is clear though, from the
totality of complainant's submission that she desires to have a hearing
in front of a Commission AJ.
Furthermore, we find that the agency did not properly conduct an
investigation into complainant's claims. After a thorough review of
the record, we fail to locate affidavits from the named responsible
management officials (aside from incomplete �rebuttal� affidavits
which merely respond to some of complainant's statements but are not
complete interviews on the issues), and are unable to determine if a
complete investigation was conducted regarding complainant's reasonable
accommodation claims. Our regulations and the EEOC Management Directive
(MD) 110, November 9, 1999 for 29 C.F.R. Part 1614 require agencies
to develop a complete and impartial factual record. See 29 C.F.R. �
1614.108(b) and MD-110, Chapter 6. Upon remand, the investigative file
will be organized and completed in conformance with the requirements
found in the EEOC MD-110, Chapter 6, including a summary of the
investigation. See EEOC MD-110, 6-22.
We therefore VACATE the agency's finding of no discrimination, and REMAND
this matter for a supplemental investigation, and for referral to the
appropriate Commission District Office for processing by an AJ, in
accordance with the following Order, and the applicable EEOC Regulations.
ORDER
1. The agency is ordered to conduct a supplemental investigation,
which shall include the following actions:
A) The agency shall ensure that the investigator obtains information
concerning complainant's requests for a reasonable accommodation, and
all documentation regarding her claimed disabling condition, and any
conditions related to it (either available from complainant or from
agency files), and any other information relevant to complainant's
claims.
B) The investigator shall ensure that the investigative file contains
complete affidavits from the named responsible management officials,
and from any other individual likely to have information bearing on
the outcome of the complaint.
C) The investigative file shall be organized in accordance with EEOC
MD-110, Chapter 6, including a summary of the investigation.
D) The agency shall ensure that the investigator completes the
supplemental investigation within forty-five (45) calendar days
of the date this decision becomes final. Thereafter, the agency
shall provide the complainant, within thirty (30) calendar days
from the date the agency completes the supplemental investigation,
an opportunity to respond to the supplemental investigative report.
The agency shall then take any action appropriate and consistent with
complainant's response. Copies of the completed investigative summary,
and the letter transmitting it to complainant, must be submitted to
the Compliance Officer, as referenced below.
2. Unless complainant explicitly withdraws her request for a hearing
before a Commission AJ and requests a final agency decision on the
record in accordance with 29 C.F.R. �1614.110(b), within fifteen
(15) calendar days from the end of the thirty (30) day period which
complainant had to respond to the supplemental investigation, the
agency shall refer complainant's complaint file to the Hearings Unit
of the Seattle, Washington EEOC District Office to be assigned to an
Administrative Judge for processing. The agency shall ensure that the
file is a complete, impartial and appropriate factual record for the
Administrative Judge to review. 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 of the Seattle, Washington EEOC District Office. 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.
3. In the event that complainant does explicitly withdraw her request
for a hearing before a Commission AJ, the agency is directed to issue
a new final agency decision within twenty (20) days from the end of
the thirty (30) day period which complainant had to respond to the
supplemental investigation, with full and appropriate appeal rights
to the Commission. A copy of the letter from complainant withdrawing
her request for a hearing, and the new final agency decision, must be
submitted to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____08-23-02______________
Date