0120113842
10-22-2014
Complainant, v. Penny Pritzker, Secretary, Department of Commerce (Patent and Trademark Office), Agency.
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce
(Patent and Trademark Office),
Agency.
Appeal No. 0120113842
Agency No. 015637
DECISION
On August 13, 2011, Complainant filed an appeal from the Agency's July 14, 2011, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision.
ISSUE PRESENTED
Whether the Agency appropriate issued a Final Agency Decision (FAD) in this case.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Patent Examiner, GS-1224- 2, Office of the Commissioner for Patents, at the Agency's facility in Arlington, Virginia. On May 18, 2001, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and reprisal for prior protected EEO activity when:
1. In December 2000, Complainant's supervisor (S1) deducted workflow points that impacted Complainant's production that her Group Director later reinstated;
2. On December 15-19, 2000, S1 created an atmosphere that inhibited Complainant's ability to meet the production goals for the quarter by neither reviewing her cases nor allowing experienced patent examiners to review her complied cases;
3. On December 20, 2000, S1 attempted to charge Complainant with being Absent Without Leave (AWOL) even though she informed S1 via email and interoffice calendar scheduling of her intent to use annual leave;
4. On January 3, 2001, Complainant was given an oral warning;
5. On January 4, 2001, S1 left a copy of the oral warning that was given to Complainant on the floor copier for five hours;
6. On January 18, 2001, S1 informed Complainant that she did not receive her promotion in a timely manner because she was a Mechanical Engineer in a Chemical and Engineering Technology Center;
7. From May 1999 to present Complainant has been disparately treated in comparison to a similarly situated examiner of a different race in the same art unit who had significantly lower production, performance of lesser quality and quantity and a poorer attendance record;
8. On April 25, 2001, Complainant was forced to interact in a hostile work environment with her supervisor who threw a stack of papers in Complainant's face and chest.1
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing on or about March 5, 2002. However, due to a pending class complaint, the complaint was held in abeyance from July 10, 2001 through August 30, 2005.
On or about October 4, 2005, Complainant's ROI and administrative file were forwarded to the EEOC's Washington Field Office (WFO) for a hearing. On or about November 2010, the Agency was advised by the WFO that it did not have this hearing request in their records. The Agency then forwarded this information to Complainant, requesting that she forward a copy of her hearing request to the Commission. The Agency determined that because Complainant was unable to retrieve her copy of her March 5, 2002 hearing request and WFO did not receive the March 5, 2002 hearing request, the Agency issued a final decision. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant submitted a brief in support of her appeal on July 20, 2012, over one year beyond her date of filing her appeal. Complainant asserts that her appeal brief is late because the attorney she hired to represent her in this appeal failed to do so and so she terminated his services.
In response to the Agency's FAD, Complainant argues, among other things, that the Agency erred in issuing a decision and that she had requested a hearing before an EEOC AJ. In support of her arguments, Complainant states that the Agency had a copy of her hearing request. Complainant also included emails between her and an EEO Specialist with the Agency that showed that Complainant inquired about the status of her case on April 29, 2011. The EEO Specialist informed her that the Agency and the WFO did not have a copy of her hearing request. On May 2, 2011, Complainant stated in an email that she re-sent the request to the EEO Specialist. In an email dated May 3, 2011, the EEO Specialist stated that she had received the request and would forward it to the WFO. Nevertheless, the Agency issued a final decision on July 14, 2011.
In response the Agency argues that Complainant's brief is untimely and should not be considered. The Agency requested an opportunity to respond if the Commission decided to consider Complainant's appeal.
ANALYSIS AND FINDINGS
The Commission finds that the Agency erred in issuing a FAD when Complainant requested a hearing before the Commission. Preliminarily, we note that even if the Commission decided to not permit Complainant's late brief, the issue of whether the Agency properly issued a FAD is within the purview of the Commission on appeal. Additionally, the copy of the emails between Complainant and the EEO Specialist from April 29, 2011 to May 3, 2011, should have been contained as part of Complainant complaint file because they are relevant to whether Complainant requested a hearing. Here, the complaint file contains no such evidence. As such, the Commission will consider those emails as part of the Complaint file because the Agency failed to appropriately include these email in the complaint file.
Given that record evidence shows that the Agency knew of Complainant's request for a hearing via the emails on May 3, 2011, and the Agency's EEO Specialist stated she received it on May 3, 2011, we find that Complainant established that she requested a hearing before an EEOC AJ. The Agency did not argue that the email exchange was unauthentic or otherwise not worthy of credence. We note also that the record shows that the Agency believed that Complainant may have submitted the request to the WFO while the case was held in abeyance. In the interest of preserving access to the EEO process, we find that Complainant requested a hearing before an EEOC AJ. As such, we find that the Agency erred in issuing a FAD in this case.
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 FAD and remand the complaint for a hearing before an EEOC AJ.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC Washington Field Office 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 hold a hearing and 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.
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
__10/22/14________________
Date
1 The Agency dismissed the following claims: 1. On March 13, 1999, Complainant was denied a promotion because her production pattern was not acceptable to the Director although her production was above the fully satisfactory level whereas other male junior examiners received promotions on time; 2. On March 28, 1999, Complainant was denied a promotion with the explanation that her production for three consecutive bi-weeks must be over 95%; 3. On April 13, 1999, Complainant was informed that she could not work voluntary overtime as a GS-7 and was again denied promotion; 4. Beginning in March 1999, to the present, Complainant was required by her supervisor to complete cases assigned to other patent examiners without being offered other time or a learning curve; and 5. In January 2000, Complainant was forced to work in a hostile work environment because her supervisor poorly handled an inter-office work dispute.
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0120113842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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