0120161681
08-24-2016
Willia R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Willia R.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120161681
Agency No. DIA201400019
DISMISSAL
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 17, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Staff Officer at the Agency's facility in Washington, D.C. On May 12, 2014, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and disability when she was subjected to a hostile work environment. In her complaint, Complainant raised more than 70 allegations in support of her hostile work environment claim.
On March 17, 2016, the Agency issued a final decision finding that Complainant was not discriminated against as alleged. Following her receipt of the final decision, Complainant retained an attorney, who contacted the Agency and requested that it rescind its final decision and allow Complainant to go forward with a hearing.
Thereafter, when the Agency did not agree to rescind its decision, Complainant filed the instant appeal. In her appeal, Complainant asserts she never received a notice from the Agency of her right to request a hearing, and asks that the matter be forwarded for a hearing.
In response, the Agency states that it mailed Complainant the investigative report and a notice of her right to request a hearing to Complainant on December 2, 2015, by registered mail to her address of record. The Agency also stated that it sent Complainant an email on January 8, 2016, asking for confirmation of her receipt of the report of investigation. However, the Agency states Complainant did not respond to the email and the December 2, 2015 package was returned to it as "unclaimed" on March 3, 2016.2
On appeal, Complainant has provided a sworn statement that she had a history of problems with her mail delivery and asserts she never received either mailed package containing the report of investigation and notice of right to request a hearing. Complainant also explains that her computer was not working during the relevant time, and she did not receive the January 2016 email from the Agency on this matter. The record confirms that there is no evidence that Complainant received the email.
We find that the Agency's reliance on 29 C.F.R. � 1614.110(b) as authority for its issuance of its final decision to be misplaced. That regulation does not apply where a complainant has not received a copy a notice of right to request a hearing. Rather, it applies where a complainant has not responded to the notice. In the instant case, the Agency was aware that Complainant had not have received the notice of right to request a hearing when it issued its March 17, 2016 final decision. The Agency received the first unclaimed package on March 3, 2016, before it issued the decision, and could have checked regarding the second package by using the USPS tracking information online.
We find, under the facts of this case, that there is no evidence that Complainant received a copy of the report of investigation or the notice of right to request a hearing before the Agency issued its March 17, 2016 final decision. She makes it clear on appeal that she wishes to have a hearing. As such, we find that the Agency's final decision should be VACATED and, accordingly, Complainant's appeal of that decision is DISMISSED. The matter is REMANDED to the Agency for further action in accordance with the Order set forth below.
ORDER
Within thirty (30) days of the date this decision becomes final, the Agency shall inform the appropriate EEOC Hearings Unit of Complainant's request for a hearing. Within the same time frame, the Agency shall submit the complaint file, including the report of investigation and a copy of this decision, to the Hearings Unit.
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 (M0416)
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 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. The requests 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 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 (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
August 24, 2016
__________________
Date
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.
2 The Agency asserts it intended to send a second copy of the investigative report and notice of right to request a hearing to Complainant by regular mail, but inadvertently also sent this copy by registered mail as well. This second package was also returned to the Agency on March 22, 2016, as "unclaimed."
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