01a00061
04-03-2000
Ann Jenkins, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Ann Jenkins, )
Complainant, )
)
v. ) Appeal No. 01A00061
) Agency Nos. 970155; 970356
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
On October 1, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on September 10,
1999, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts
the complainant's appeal from the agency's final decision in the
above-entitled matter.
The record reflects that the agency conducted an investigation
for complaints 970155 and 070356 and subsequent thereto, on July 13,
1998,the agency issued complainant a letter advising her of the right to
request a hearing or a FAD with respect to complaint 970869. However,
this letter did not make mention of complainant's right to request a
hearing for complaints 970155 and 970356.
On August 29, 1999, the agency issued a FAD, on the merits, for
complaints 970155 and 070356, finding no discrimination. In addition
to the finding of no discrimination, the agency found that complainant
failed to respond to the July 13, 1998, letter informing complainant of
the right to request a hearing or a final agency decision with respect
to complaints 970155 and 070356 within thirty days of its receipt.
Therefore, the agency issued a final decision.
On appeal, complainant, through her attorney, argues that the agency
failed to provide her with the notice and rights to request either
a hearing before an Administrative Judge or a final agency decision.
To support her assertion, complainant included a copy of the July 13,
1998 letter, which only makes reference to complaint 970869. Moreover,
complainant states that she responded to the notice and requested a
hearing for case 970869, which is presently before an AJ. As a result,
complainant requests that the Commission vacate the FAD and issue
complainant her right to a hearing and the investigative reports for
complaints 970155 and 070356.
EEOC Regulation, 64 Fed. Reg. 37,644, 37657 (1999) (to be codified at
and hereinafter referred to as 29 C.F.R. � 1614.108(f)), provides,
in pertinent part, that the agency shall provide complainant with a
copy of the investigative file, and shall notify the complainant that,
within 30 days of receipt of the investigative file, the complainant has
the right to request a hearing and a decision before an Administrative
Judge or may request an immediate final decision pursuant to � 1614.110
from the agency with which the complaint was filed. In this case, the
record is void of any evidence to establish that complainant did in fact
receive the right to request a hearing or a final agency decision with
respect to complaints 970155 and 070356. Accordingly, the agency's
decision to issue a FAD was improper.
CONCLUSION
For the reason set forth herein, the Commission hereby VACATES the
agency's August 29, 1999 final decision and REMANDS complaints 970155
and 070356 for further processing in accordance with this decision and
applicable regulations.
ORDER
The agency is ORDERED to issue to the complainant a copy of the
investigative file to the extent it has not already done so and to notify
the complainant in accordance with 29 C.F.R. � 1614.108(f) of his right
to request, within 30 calendar days of his receipt of the investigative
file, either a hearing before an EEOC Administrative Judge or a final
agency decision without a hearing. If the appellant requests a final
decision without a hearing, the agency shall re-issue the August 29,
1999 final agency decision within thirty (30) calendar days of receipt
of complainant's request. If the complainant requests a hearing, the
agency shall forward the request to the appropriate EEOC Office within
thirty (30) calendar days of receipt of complainant's request.
The agency is ORDERED to send a copy of the notice that transmits the
investigative file and notice of rights to the complainant, and a copy of
the re-issued final agency decision or the letter to the EEOC requesting
the assignment of an Administrative Judge, to the Compliance Officer
referenced below on the dates of issuance.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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
(R1199)
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:
April 3, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at WWW.EEOC.GOV.