01A12803
08-06-2002
Bertha M. Walker, Complainant, v. Gordon R. England, Secretary, Department of the Navy, (Armed Forces Retirement Home), Agency.
Bertha M. Walker v. Department of the Navy
01A12803
August 6, 2002
.
Bertha M. Walker,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
(Armed Forces Retirement Home),
Agency.
Appeal No. 01A12803
Agency No. AFRH99-00USNH-003 & AFRH00-00USNH-001
Hearing No. 130-A0-8272X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission reverses the agency's final order.
The record reveals that complainant, a Physical Therapist Assistant at
the agency's US Naval Home, Armed Forces Retirement Home, Gulfport,
Mississippi, facility, filed formal EEO complaints on July 6, 1999,
and October 18, 1999, alleging that the agency had discriminated against
her on the bases of race (African-American), sex (female), and reprisal
for prior EEO activity. Complainant alleged she was harassed based on
her sex and race from June 1998 to May 1999. She alleges in her second
complaint that she was subsequently subjected to reprisal from July 21,
1999, to October 18, 1999, based on various actions by the agency.
The agency consolidated the complaints for investigation. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). According to complainant's statement on appeal her case
was returned to the agency by the AJ for failure to comply with his
(the AJ's) Acknowledgment Order of July 3, 2000.<1> Specifically,
section VII requires a response by both parties should the AJ propose
to issue a decision without a hearing, either on his own motion or on
the motion of a party. Complainant states on appeal first that she was
never provided with a copy of the acknowledgment order, only her attorney
was sent one by the AJ.<2> Second, she explains that during the response
period ordered by the AJ after his proposal to issue a decision without a
hearing, complainant's attorney was hospitalized.<3> Complainant goes on
to state that, upon learning of the non-compliance, she tried to contact
the AJ in order to respond to the order, but was unsuccessful. The AJ,
after receiving no response from complainant or her attorney, apparently
returned the case to the agency for the issuance of a final decision,
instead of simply issuing a summary judgment decision himself.<4> The
agency subsequently issued a FAD. Complainant herein appeals.
First, we find that complainant has shown cause for not complying with
the order to respond. Second, complainant offers on appeal several
material facts that remain in dispute regarding her claims of harassment
and reprisal. She is, therefore, entitled to a hearing. Though the
lapse in communication is apparent, whether the agency or the AJ is to
blame is not clear. The record suggests that complainant did try to
contact the AJ several times, but the holidays impeded her success.
This notwithstanding, however, material facts remained in dispute.
We find therefore summary judgment should not have been contemplated.<5>
Finally, we also find that the FAD issued by the agency fails to comply
with 29 C.F.R. � 1614.110(b). The FAD is without any analysis or
findings of fact. We remind the agency of its obligation pursuant to
EEOC Regulation 29 C.F.R. � 1614.110(b) to issue a final decision which
�consist[s] of findings by the agency on the merits of each issue in the
complaint.� Failure to provide complainant with a complete and accurate
statement of the law applicable to her case and a detailed explanation
of how complaint failed to meet the applicable legal requirements may, in
effect, deprive complainant of a meaningful right of appeal. See Babcock
v. Department of Veterans Affairs, EEOC Appeal No.01960708 (March 4,
1998); Dorsey v. Deptartment of the Air Force, EEOC Appeal No. 01941767
(November 29, 1994) (in adopting the findings and conclusions of the
investigator for its own final decision, the agency abdicated its duty
to make its own findings based upon the factual record). Accordingly,
in the future the agency shall issue a more complete and accurate
statement of the facts of a complainant's case and indicate how the
complainant failed to meet the relevant legal requirements. For all
these reasons, the FAD is hereby reversed and remanded to the agency
for further processing in accordance with the order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC Birmingham
District Office 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 complete 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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
August 6, 2002
__________________
Date
1 The record does not contain a copy of the transmittal letter returning
this case back to the agency from the AJ.
2 Because the order is not in the record, there is no indication
whether it complied with 29 C.F.R. � 1614.604(d), which requires
official correspondences be sent to complainant's attorney, with copies
to complainant.
3 The record provided by the agency further fails to include a copy of
either the agency's motion for a decision without a hearing or the AJ's
sua sponte proposal for the same.
4 We presume if the AJ was considering issuing a summary judgment
decision, he believed the record to be adequate as it stood.
5 Because we do not have findings of fact from the AJ or the agency,
nor do we know what the record consisted of as it stood before the AJ,
we will refrain from listing which are in dispute.