0720070045
09-10-2007
Dawn R. Royal, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Dawn R. Royal,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0720070045
Hearing No. 430-2007-00003X
Agency No. 2004-0652-2006101859
DECISION
Following its April 26, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission affirm its rejection of
an EEOC Administrative Judge's (AJ) finding that the agency discriminated
against complainant on the basis of race (African-American) in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq., when she was notified that she was not selected
for the position of Nurse Manager, Ambulatory Procedure Unit and she
was informed that a Caucasian employee was detailed into an assignment
with promotion potential. The agency also requests that the Commission
affirm its rejection of the relief ordered by the Administrative Judge
(AJ). For the following reasons, the Commission REVERSES the agency's
final order.
The record reveals, that complainant, a Staff Nurse Supervisor at the
agency's Veterans Affairs Medical Center in Richmond, Virginia, filed a
formal complaint on May 1, 2006. On May 25, 2006, the agency accepted the
complaint for investigation. On October 4, 2006, complainant requested
a hearing before an AJ pursuant to 29 C.F.R. � 1614.108(g). On October
13, 2006, the AJ issued an order giving the agency 15 days to produce
the complaint file, including the report of investigation, or show good
cause for failure to produce it. The AJ noted that failure to comply with
the order may result in sanctions against the agency, including a default
judgment in favor of complainant. The agency responded, stating that the
order and complainant's hearing request were premature. On November 9,
2006, the agency assigned an investigator to the discrimination complaint.
Complainant resubmitted her hearing request on November 14, 2006.
The agency forwarded the complaint file to the AJ on November 27, 2006,
but noted that the investigation was incomplete.
On December 28, 2006, complainant filed a motion requesting sanctions
against the agency for failure to timely complete the investigation and
failure to show good cause why it had not done so. In its response,
the agency claimed that sanctions were not warranted since the complaint
file had already been sent to the AJ, and the AJ did not re-issue an Order
to Produce. The agency also claimed that complainant was attempting to
abuse the EEO process by knowingly filing a premature hearing request.
On December 29, 2006, the agency completed the investigation and sent
copies of the report of investigation to the AJ and to complainant.
On January 30, 2007, the AJ issued an order directing the agency to
show cause why a decision fully in favor of complainant should not
be issued in light of the agency's failure to timely investigate the
complaint. In its response, the agency claimed that it did not fail to
investigate, it merely delayed the investigation, and complainant had
not been adversely affected by the delay. The agency also claimed that
complainant has a history of abusing the EEO process and a decision in
favor of complainant would harm the VA Medical Center as opposed to the
agency entity that is responsible for EEO investigations.
The AJ issued an interim decision on February 15, 2007 sanctioning the
agency for its failure to assign an investigator until well after the
expiration of the 180 days to complete the report. The AJ entered a
default judgment in favor of complainant, including relief in the form of
a retroactive promotion to the position of Nurse Manager, back pay and
benefits, and equal opportunity to participate in detail assignments.
In the interim decision, complainant was instructed to submit evidence
in support of her claim for compensatory damages and a statement of
attorney's fees and costs; however, complainant failed to timely respond.
The AJ then issued a subsequent decision on April 4, 2007 granting
complainant the full relief previously stated in the interim decision.
The agency's April 26, 2007 final order rejected the AJ's decision.
On appeal, the agency argues that the AJ abused her discretion in issuing
a default judgment in favor of complainant. The agency claims that
complainant knew or should have known that her initial hearing request
was premature and experienced no adverse consequences as a result of the
agency's delay in investigating the complaint. Further, the agency claims
that the AJ focused exclusively on the date the agency's investigation
was due and its past transgressions rather than complainant's errors
and intentional disruptions to the discrimination complaint process.
Finally, the agency argues that the AJ abused her discretion in imposing
sanctions which had the effect of promoting complainant to the position
of Nurse Manager without a consideration of complainant's qualifications.
Complainant responded, urging the Commission to affirm the AJ's decision.
Pursuant to 29 C.F.R. � 1614.108(e), agencies must complete an
investigation of a formal EEO complaint within 180 days of the filing of
the complaint unless the parties agree in writing to extend the period
for not more than an additional 90 days. Here, complainant did not
agree to an extension during the regulatory 180-day period, therefore,
the agency was required to complete the investigation of complainant's
complaint on or before October 28, 2006. The record reveals, and the
agency does not dispute, that no investigation was ever begun, much
less completed, within the 180-day period. The record reflects that the
agency did not assign an investigator to investigate complainant's case
until November 9, 2006. The Commission finds that the agency has not
provided any documentation or explanation for its failure to investigate
the complainant's complaint before October 28, 2006. It appears from
the agency's responses to complainant's initial hearing request and the
AJ's Order to Produce dated October 13, 2006, that the agency was well
aware of its responsibility to have the complaint investigated, but it
intentionally delayed doing so. Accordingly, the Commission finds that
the agency failed to conduct a timely investigation of the complainant's
complaint as required by 29 C.F.R. � 1614.108(e).
The Commission has the inherent power to protect its administrative
process from abuse by either party and must insure that agencies, as
well as complainants, abide by its regulations. EEOC Regulation 29
C.F.R. � 1614.109(f)(3) authorizes administrative judges to sanction a
party for failure to respond fully and timely to requests for evidence
in the hearing context. After an independent review of the evidence,
the Commission finds that the AJ did not abuse her discretion in issuing a
decision favorable to complainant as a sanction against the agency for its
dilatory investigation. See Reading v. Department of Veterans Affairs,
EEOC Appeal No. 0720040125 (October 12, 2006); DaCosta v. Department
of Education, EEOC Appeal No. 01995992 (February 25, 2000). Therefore,
after a careful review of the record, including arguments and evidence
not specifically discussed in this decision, the Commission REVERSES the
agency's final order and directs the agency to take corrective action
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
1. Within 30 days of the receipt of this decision, the agency shall
retroactively promote complainant to the position of Nurse Manager,
Unit 2E-Ambulatory Procedure Unit, Preadmission Screening Clinic, with
back pay and benefits;
2. Grant complainant equal opportunity to participate in detail
assignments;
3. Consider taking appropriate disciplinary action against the responsible
management officials. The Commission does not consider training to
be disciplinary action. The agency shall report its decision to the
compliance officer. If the agency decides to take disciplinary action,
it shall identify the action taken. If the agency decides not to take
disciplinary action, it shall set forth the reason(s) for its decision
not to impose discipline. If any of the responsible management officials
have left the agency's employ, the agency shall furnish documentation
of their departure date(s); and
4. Process complainant's petition for attorney's fees and costs incurred
for the successful prosecution of this appeal in accordance with 29
C.F.R. � 1614.501.
POSTING ORDER (G0900)
The agency is ordered to post at its Richmond VA Medical Center facility
copies of the attached notice. Copies of the notice, after being
signed by the agency's duly authorized representative, shall be posted
by the agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive days,
in conspicuous places, including all places where notices to employees are
customarily posted. The agency shall take reasonable steps to ensure that
said notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
September
10,
2007
______________________________
__________________
Carlton M. Hadden, Director
Date
Office of Federal Operations
2
0720070045
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036