0120121575
07-30-2012
Timothy G. Hodge, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Timothy G. Hodge,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120121575
Hearing No. 570-2011-00309X
Agency No. ARBELVOIR10JUN02729
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated January 11, 2011, finding no discrimination on his complaint of unlawful 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Deputy of the Tables of Distribution and Allowance (TDA) Division in the Agency's USA Force Management Support Agency (USAFMSA) in Fort Belvoir in Virginia.
On July 30, 2010, Complainant filed a formal complaint, which he amended in August 2010 and February 2011, alleging that the Agency discriminated against him based on his race (Black) or reprisal, as applicable, for prior EEO activity under Title VII when various acts of discrimination occurred from July 5, 2009 to January 2011. The alleged acts regarded things such as wages, undermining him in various ways as a manager, assignments, harassment, his mid-term assessment, and leave.
The Agency conducted the investigation on Complainant's complaint, as amended, from January 14, 2011 to April 7, 2011. After more than 180 days passed from his filing his complaint, Complainant on January 27, 2011 made a request to the EEOC, which he copied to the Agency, for a hearing before an Administrative Judge (AJ). The record shows that the Agency timely received this request and continued with the EEO investigation.
In June 2011 the Agency mailed the report of investigation and the right to request a hearing to Complainant's attorney. After Complainant did not request a hearing in response to this mailing the Agency issued its FAD on January 11, 2012, finding no discrimination. Therein the Agency wrote that Complainant did not request a hearing after receiving the right to request one, a reference to the June 2011 mailing.
While the EEOC's electronic records reflect that Complainant made his request for a hearing by January 28, 2011, for reasons not reflected in the record an EEOC AJ did not order the Agency until February 6, 2011, to provide the record to the EEOC field office.
Meanwhile, on February 16, 2012, Complainant appealed the FAD to the EEOC. He argues that the Agency should not have issued a FAD on the merits since he timely requested a hearing on January 27, 2011. He asks that his complaint be remanded for a hearing.
In opposition to the appeal, the Agency argues that it continued the EEO investigation in good faith and provided due process by sending Complainant his notice of right to a hearing in June 2011, and Complainant did not request a hearing.
On June 21, 2012, the AJ dismissed Complainant's request for a hearing. The AJ reasoned that there was an appeal pending on the matter.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(e)(2) provides:
The agency is required to conduct an impartial and appropriate investigation of the complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the time period. When a complaint has been amended, the agency shall complete its investigation within the earlier of 180 days after the last amendment to the complaint of 360 days after the filing of the original complaint, except that the complainant may request a hearing from an administrative judge on the consolidated complaints any time after 180 days from the date of the first filed complaint.
Under this regulation Complainant timely requested a hearing on January 27, 2011. The Agency's continuation of the investigation in good faith did not negate this request. When the Agency provided Complainant his notice of a right to request a hearing in June 2011, his January 2011 hearing request was still pending. Had Complainant requested a hearing a second time confusion likely would have been avoided, but a second request was not required to perfect the first hearing request. Accordingly, the Agency improperly issued a decision on the merits while Complainant's hearing request was pending.
Accordingly, the Agency's FAD is VACATED and the complaint is REMANDED for further processing pursuant to the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC Field Office a request for a hearing on this complaint, as amended, within 15 calendar days after this decision becomes final.1 The hearing request must include a brief explanation that it is being made pursuant to this decision, and be accompanied with the complaint, investigative files, and hearing record, and a copy of this decision. The agency shall provide a copy of the hearing request to the Compliance Officer at the address set forth below, and a copy to Complainant. Thereafter, an AJ 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).
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
July 30, 2012
__________________
Date
1 This shall be deemed a timely hearing request on the entire complaint, as amended, i.e., the August 2010 and February 2011 amendments.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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