U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fawn G.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120151450 Hearing No. 430-2014-004222X Agency No. 146238100049 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the February 17, 2015 final agency decision (FAD) 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 FAD is VACATED, and the complaint is REMANDED for an Administrative hearing. ISSUE PRESENTED Whether the Equal Employment Opportunity Commission Administrative Judge (AJ) erred when she dismissed Complainant's hearing request pursuant to a motion filed by the Agency because Complainant did not serve it with a copy of her hearing request to the Commission. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civil Service Mariner (CIVMAR) stationed aboard an Agency vessel. On February 17, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when: 1. From June 13, 2013 through September 24, 2013, the Ship's Communications Officer (S2), badgered, bullied, intimidated, and ostracized her; did not give her the opportunity to do her job or learn new tasks; talked down to her; called her a liar; made it appear that she was incapable of doing her job; spread false information about her integrity to her shipmates; and defamed her character; 2. On July 5, 2013, she was approached by the Chief Union Steward (CUS) because S2 had complained about her perfume; 3. On July 15, 2013, S2 asked her not to wear perfume; 4. S2 continued to harass her after she informed him on July 28, 2013 that she believed he was treating her unfairly and hindering her from performing her duties; 5. S2 announced to the Communications Department that she made an error on her overtime sheet and then publicly chastised, belittled, and harassed her about the error; 6. On September 5, 2013, S2 talked down to her in the presence of others and failed to assist her with a computer maintenance issue; and 7. On September 5, 2013, S2 bad-mouthed her to the CUS. Procedural History The record reflects that by letter dated August 25, 2014, the Agency transmitted a copy of the investigative file, and notified Complainant of her right to request a hearing before an EEOC Administrative Judge. By notice dated September 24, 2014, the AJ notified the Agency that the Commission had received Complainant's hearing request on September 8, 2014, and ordered the Agency to produce the investigative file. The Agency contends that it received the AJ's Notice of Receipt on October 14, 2014, and that five days prior, on October 9, 2014, it issued a letter to the Director of the Naval Office EEO Complaints and Adjudication to issue a FAD in Complainant's case. Subsequently, on October 17, 2014, the Agency filed a motion to dismiss Complainant's hearing request because she did not provide a copy of the request to the Agency. In an order dated December 8, 2014, the AJ granted the Agency's motion to dismiss Complainant's hearing request on the grounds that the Agency did not receive notice of the request until after beginning the FAD process began. The AJ remanded the matter to the Agency for further processing and the issuance of a FAD. The Agency issued a FAD on February 17, 2015, and the instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(f) provides that Complainant has the right to request a hearing before an EEOC Administrative Judge within 30 days of the receipt of the investigative file. A complainant may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the Agency's transmittal letter. 29 C.F.R. § 1614.108(g). Complainant is also required to submit a copy of this request to the agency. Id. Within 15 days of receipt of the request, the Agency's EEO office must provide a copy of the complaint file to the appropriate EEOC office. Id. The record reveals that Complainant received the investigative file, along with her right to request a hearing on or around August 25, 2014. The Notice transmitting the investigative file informed Complainant that she had thirty days from receipt of the Notice to request a hearing. The Notice further informed Complainant, in pertinent part, that Commission regulations require that a copy of the hearing request must be sent to the Agency. The Notice did not explicitly inform Complainant that her failure to provide the Agency with a copy of the hearing request could result in her forfeiting her right to a hearing. Additionally, the Notice contained a copy of the Request for Hearing Form. The record reflects that on September 8, 2014, the EEOC's Charlotte District Office received Complainant's hearing request. This date falls within the thirty days that preceded Complainant's receipt of the investigative file. While Complainant indicated on the hearing request form that a copy was sent to the Agency, the record is devoid of any other evidence that she actually sent a copy of the hearing request to the Agency. EEOC Regulation 29 C.F.R. § 1614.108(h) provides that a "complainant shall send a copy of the request for hearing to the agency EEO office." The Commission has held that failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. Tearanda D. Pearsey v. Dep't of Veteran Affairs, EEOC Appeal No. 0120103636 (April 19, 2012) citing Gallo v. Dep't of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). However, the Commission has upheld hearing requests where the agency has failed to provide complainant with adequate notice that she risks forfeiture of her right to request a hearing by neglecting to provide the agency with notice of the request. See Pearsey v. Dep't of Veteran Affairs, EEOC Appeal No. 0120103636 (April 19, 2012). In the instant matter, while the Agency's August 25, 2014 letter to Complainant advised her to submit a copy of her hearing request to the Agency, it did not inform her that she risked forfeiture of her right to a hearing if she failed to do so. As such, the Commission finds that the Agency's notice was fundamentally defective and did not put Complainant on notice that she risked forfeiting her right to a hearing. Moreover, the record is otherwise devoid of any evidence to show that Complainant had notice that she risked forfeiting her right to a hearing by failing to provide the Agency notice of her request. Furthermore, lacking this notice, the Commission finds that Complainant's September 8, 2014 request for a hearing at the EEOC's Charlotte District Office effectively transferred jurisdiction of the complaint to the Commission. The dates on which the Agency took subsequent actions to begin the FAD process happened long after Complainant submitted her hearing request, as well as, after the Commission notified the Agency of the request and asked for transmission of the investigative file to its Charlotte District Office. Accordingly, we find that the AJ erred in granting the Agency's motion to dismiss the hearing request. The Commission hereby advises Complainant that the Commission's regulations and Management Directive 110, in pertinent part, mandate that a complainant must provide the Agency with a copy of every document she files with the Commission, whether it be at the hearing level or on appeal. The Commission further advises Complainant, that by virtue of this decision, she has clearly been put on notice of the requirement to provide the Agency with a copy of all documents she files with the Commission. Accordingly, the Commission finds that, under the circumstances of this case, the Agency's final decision must be VACATED, and Complainant's complaint must be REMANDED to the Agency in accordance with the Order below. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Charlotte District Office within fifteen (15) calendar days of the date this decision is issued. 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. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 __11/22/17________________ 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 0120151450 2 0120151450