01A32569
01-12-2004
Ahmad B. Nurriddin, Complainant, v. Sean O'Keefe, Administrator, National Aeronautics and Space Administration, Agency.
Ahmad B. Nurriddin v. National Aeronautics and Space Administration
01A32569
January 12, 2004
.
Ahmad B. Nurriddin,
Complainant,
v.
Sean O'Keefe,
Administrator,
National Aeronautics and Space Administration,
Agency.
Appeal No. 01A32569
Agency No. NCN-02-HQs-A020
DECISION
The complainant filed a timely appeal with the Commission from
the agency's final decision dated February 14, 2003, regarding his
above-captioned 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In that complaint, he alleged to have been subjected to unlawful
discrimination on the bases of his race (African-American), sex, religion
(Muslim), and disability (depression, anxiety, and back pain), and in
retaliation for engaging in protected equal employment opportunity (EEO)
activity, when:
he was issued a letter on October 12, 2001, instructing him to return
to work in the Office of Human Resources and Education Division (Code FE);
on or about October 26, 2001, he learned that management failed to act
on his letter of July 26, 2001, regarding his leave buy-back request;
on or about November 26, 2001, he learned that management dismissed the
medical review of a former NASA Senior Medical Director because he agreed
with the complainant's personal physician; and
on or about November 26, 2001, he learned that management intentionally
denied his within-grade increases and other benefits in November, 1999
and November, 2000.
After accepting the complaint, the agency informed the complainant,
by letter dated April 5, 2002, that his complaint was properly
characterized as a �mixed case complaint� based upon his allegation that
the agency denied him a within-grade increase. In accordance with that
characterization, the agency informed him of his appeal rights to the
Merit Systems Protection Board (MSPB), including the right to appeal
the matter to the MSPB if the agency did not issue a final decision
on the matter within 120 days of the date of his filing of the mixed
case complaint. 29 C.F.R. � 1614.302(d)(1)(i).
Before the agency issued its final decision on his complaint, the
complainant appealed the matter to the MSPB. On August 15, 2002,
while the matter was pending before the MSPB, the agency completed
its investigation and provided the complainant with a copy of the
investigative report. The agency states that it also informed the
complainant at this time that because his was a mixed case compliant, he
was not entitled to a hearing before an EEOC Administrative Judge (AJ),
and, accordingly, that the agency would issue a final decision without a
hearing before an EEOC AJ. The MSPB subsequently assigned the matter to
an MSPB AJ who, at the end of December, 2002, dismissed the matter without
prejudice for lack of jurisdiction. On February 14, 2003, the agency
issued its final decision on the complaint, finding no discrimination.
The Commission's regulations governing the processing of mixed case
complaints require that, should the MSPB dismiss an appeal from the
agency's processing of a mixed case complaint for lack of jurisdiction,
the agency is required to recommence processing the matter as a non-mixed
case complaint. 29 C.F.R. � 1614.302(c)(2)(ii). Consistent with this
requirement, the agency is required to issue to the complainant a notice
informing him of his right to request either a hearing before an EEOC AJ
or a final decision by the agency. Id. � 1614.302(b). In this appeal,
the agency does not contend that it provided the complainant with the
requisite notice upon the MSPB AJ's dismissal of the appeal to the
MSPB, and there is no indication from the record that such notice was
ever provided to the complainant. Furthermore, there is evidence in
the record which shows that prior to its issuance of its February 14,
2003 final decision, the agency was aware that the complainant wanted a
hearing on his complaint before an EEOC AJ. The complainant has repeated
his hearing request in the instant appeal.
Therefore, as the agency failed to properly notify the complainant of
his right to request a hearing before an EEOC AJ once the MSPB dismissed
his mixed case complaint for lack of jurisdiction, and the complainant
has requested a hearing before an EEOC AJ, it is the decision of the
Commission to VACATE the agency's final decision and remand the matter
for a hearing before an EEOC AJ.
ORDER
The complaint is remanded to the Hearings Unit of the Washington Field
Office for scheduling of a hearing in an expeditious manner. The agency
is directed to submit a copy of the complaint file to the Hearings Unit
of the 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 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 (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, 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, 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. 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
January 12, 2004
Date