0120110485
08-31-2012
Victoria R. Landin, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Citizenship and Immigration Services), Agency.
Victoria R. Landin,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Citizenship and Immigration Services),
Agency.
Appeal No. 0120110485
Agency No. HS-07-CIS-001443
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 24, 2010, concerning her 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. 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 an Adjudication Officer (AO), GS-12, at the Agency's Citizenship and Immigration Service Center in Dallas, Texas. On June 21, 2007, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin (Hispanic/Mexican), sex (female), color (brown), and reprisal for prior protected EEO activity under Title VII when:
1. in November 2004, a supervisor made disparaging remarks about male friends "hanging around" her workstation;
2. in 2005, the Agency denied her conversion to permanent employment status;
3. in 2005, the Agency denied her a cash award;
4. in 2006, the Agency refused to provide her with scheduling information about a written test;
5. in 2006, the Agency did not allow her to speak Spanish at work or talk to her mother (an Agency employee) during her breaks;
6. in 2006, the Agency denied her reimbursement for mileage on her personally owned vehicle (POV) during a nine-month detail to Miami;
7. in October 2006, she learned of the cancellation of a vacancy announcement that she applied for in May 2006, for a permanent Adjudication Officer (AO) position;
8. on November 2, 2006, the Agency charged her Absent Without Leave (AWOL);
9. on January 5, 2007, the Agency denied her requests for sick leave for January 4 and 5, 2007;
10. on January 12, 2007, the Agency required that she provide written documentation for her medical appointments;
11. on January 18, 2007, a supervisor informed her that human resources would not overlook the fact that she did not have sufficient time in the next lower grade to apply for a GS-12 position in response to her inquiry about whether she qualified to apply for a permanent AO position at the Texas service center;
12. on January 23, 2007, the Agency placed her on leave restriction for a year.
13. from January to February 2007, the Agency assigned her to work in a building with excessive dust, dirty carpets, and broken air conditioning;
14. in February 2007, the Agency required her to provide documentation to support her absence for jury duty on February 5, 2007;
15. on February 22, 2007, she resigned from her AO position due to management's alleged harassment; and
16. on April 18, 2007, the Agency told her that she could not retire her badge, and the process was on hold.
On August 24, 2007, the Agency issued a partial acceptance/dismissal, accepting claims 9 through 16 for investigation, and dismissing claims 1 through 8 for untimely EEO counselor contact. The Agency completed its Report of Investigation with regard to claims 9 through 16 on March 25, 2008. Thereafter, on March 25, 2010, the Agency rescinded its partial acceptance/dismissal in part, accepting claims 2 through 7 for investigation, finding that it improperly dismissed the claims. The Agency Completed its Report of Investigation for claims 2 though 7, on August 6, 2010. The Agency subsequently issued a final decision dated September 24, 2010, which concluded that Complainant failed to prove that she was subjected to discrimination and harassment as alleged. The Agency, in its final decision, also dismissed claims 7, 11, and 16 for failure to state a claim, and 8, 11, and 13 as having been raised in a negotiated grievance process that allowed allegations of discrimination
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she never received a Report of Investigation, and only received the Agency's final decision. Complainant contends that she never had an opportunity to rebut management's testimony or review evidence and documentation pertaining to her discrimination and harassment claims. The Agency does not address Complainant's contentions on appeal.
ANALYSIS AND FINDINGS
The Commission has vacated an agency's final decision when the agency failed to provide evidence that a complainant was in actual receipt of the investigative file and notice of right to request a hearing. See Hill v. U.S. Postal Serv., EEOC Appeal No. 01A60865 (May 12, 2006).
In the Agency's final decision, the Agency does not address whether copies of the two Reports of Investigation were transmitted to Complainant, and whether Complainant failed to request either a hearing or final agency decision. We note that the record is devoid of any notice of transmittal of the Reports of Investigation, notice of Complainant's right to request a hearing, or evidence that Complainant was in actual receipt of any such notices. Accordingly, the Agency is ordered to resend the Reports of Investigation and the notice regarding Complainant's right to request a hearing as stated in the order below.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final decision and REMAND the entire complaint in accordance with the Order below.
ORDER
The agency is ordered to process the remanded claims in accordance with 29 C.F.R.
� 1614.108(f). Within thirty (30) calendar days of the date this decision becomes final, the Agency shall issue to Complainant copies of the Reports of Investigation and shall notify Complainant of her right to request a hearing and decision from an administrative judge or to request an immediate final decision from the agency. If Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the notice that the Agency transmitted the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (Nov. 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
August 31, 2012
Date
2
0120110485
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110485