0120102605
05-15-2012
Alice F. Love, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Natural Resources Conservation Service), Agency.
Alice F. Love,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Natural Resources Conservation Service),
Agency.
Appeal No. 0120102605
Agency No. NRCS200900261
DECISION
On May 25, 2010, Complainant filed an appeal from the Agency's April 15, 2010, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is timely and the Commission accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision and REMANDS the matter for a hearing in accordance with this decision and the Order below.
ISSUE PRESENTED
The issue presented is whether Complainant's complaint should be remanded to the Agency for the scheduling of a hearing before an EEOC Administrative Judge (AJ).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Agricultural Outreach Liaison at the Agency's Alabama State Office facility in Montgomery, AL. On March 5, 2009, Complainant filed an EEO complaint alleging that she was discriminated against on the basis of age (47), race (African American), and sex (female), when on November 9, 2008 she was reassigned from the Soil Conservationist position (GS-0457-11) on the Programs Staff to the Agricultural Outreach Liaison position (GS-0457-11) on the Communication, Marketing and Outreach Staff.
The record reflects that Complainant began working for the Agency in May 1983 as a GS-4 Soil Conservationist Technician. Complainant worked several years for the Agency, in several states and was promoted through the ranks to a GS-11 Soil Conservationist. In 2002, Complainant transferred to the Agency's Alabama State Office as a Soil Conservationist (GS-0457-11) serving on the State Programs Staff. In 2006, Complainant was assigned to a new section in the same office as an Assistant Outreach Coordinator (GS-0457-11). She held this position until the reassignment which forms the basis of the underlying complaint. Effective November 9, 2008, Complainant was reassigned from the State Programs Section to the Communications, Marketing and Outreach Staff as a GS-11 Agricultural Outreach Liaison.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). The record reflects that Complainant requested a hearing. (Signed Hearing Election Form, undated). Complainant alleges that she submitted this form through her former counsel on August 12, 2009. A hearing was not requested, however. The Agency issued a final decision dated April 15, 2010 finding that discrimination did not occur with respect to the allegations Complainant raised in her EEO complaint. Specifically, the Agency found that Complainant failed to establish that she suffered an adverse employment action, or that others similarly situated outside her protected classes were treated more favorably.
On April 25, 2010, Complainant submitted her initial Notice of Appeal of the Agency's final decision to EEOC's Birmingham District office. On June 2, 2010, an AJ advised Complainant via email of the correct method for filing an appeal of a final agency decision, and explained that her office lacked jurisdiction over complaints which are the subject of a final agency decision. The AJ requested clarification on the matter from the Agency representative, but as of June 18, 2010 the AJ had received no further information regarding the matter. On June 18, 2010, the AJ assigned to the case issued a decision dismissing the case for lack of jurisdiction.
CONTENTIONS ON APPEAL
On appeal Complainant requests that the Commission reverse the Agency's final decision, and remand the case for a hearing. Complainant states that along with issuing a final agency decision (FAD) despite her request for a hearing, the Agency also made an untimely motion for summary judgment. Complainant states that no decision has been rendered on the Agency's motion to date. Complainant contends that the various mistakes made by the Agency in the processing of her complaint support her contention that the Agency is disguising discriminatory acts performed against her. Complainant is asking that the Commission carefully review all documents associated with her complaint.
The Agency did not submit any arguments in response to Complainant's appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that an agency shall provide complainants with a copy of the investigative file, and shall notify complainants that, within 30 days of receipt of the investigative file, complainants have the right to request a hearing and a decision from an AJ or may receive an immediate final decision from the agency. Harris v. U.S. Postal Service, EEOC Appeal No. 01991822 (Jan. 31, 2002). The record reflects that on July 31, 2009 Complainant's former counsel was sent a notice of right to request a hearing. The record further reflects that Complainant requested a hearing before an AJ within the applicable time frames.
In its FAD, the Agency states that the "Report of Investigation (ROI) was issued on July 16, 2009, and the Complainant elected a final agency decision." (FAD, p. 1). There is no evidence in the record to support the Agency's statement, however a hearing election form signed by Complainant was provided in the complaint file forwarded to the Commission by an Agency representative. Additionally, the record contains the following email exchange between Agency personnel stating:
"It appears that the [Agency] inadvertently issued a FAD in this case. On or about August 20, 2009, the complainant requested an EEOC Hearing through written request. The case files were sent to the corresponding Administrative Judge on August, 24, 2009. There is no record of the complainant, or the Agency, requesting a FAD. So it is not clear how, or why, a FAD was issued. There is no documentation that supports the issuing of a FAD, nor is there a request in icomplaints."
In light of the Agency's own admission that the FAD was inadvertently issued in this matter, and the lack of any evidence in the record to dispute this fact, the Commission will vacate the Agency's FAD and will remand the complaint to Agency for processing to include requesting that a hearing before an AJ be held.
CONCLUSION
Based on a thorough review of the record, including Complainant's contentions on appeal, and arguments and evidence not specifically addressed in this decision, the Commission VACATES the Agency's final decision and REMANDS this matter for a hearing in accordance with this decision and the Order of the Commission, below.
ORDER
The Agency shall submit to the appropriate EEOC Hearings Unit 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. 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).
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
___5/15/12_______________
Date
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0120102605
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102605