0720090021
06-04-2010
Brett W. Whitlock, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.
Brett W. Whitlock,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Customs and Border Protection),
Agency.
Appeal No. 0720090021
Agency No. HS-06-CBP-000729-050109
DECISION
The agency issued a final order and filed an appeal from the decision
of the EEOC Administrative Judge (AJ), issued August 15, 2008, in
the above-entitled action. The AJ found that the agency violated the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791. Upon review of
the record and for the reasons that follow, we find that the agency's
appeal was filed in an untimely manner and is dismissed. 29 C.F.R. �
1614.110(a); see 29 C.F.R. � 1614.107(a)(2).
BACKGROUND
In his August 15, 2008 Order Entering Judgment and Decision, the AJ
determined that the agency had discriminated against complainant based
on disability (depression) when he was not selected for the position of
Agricultural Specialist. The AJ ordered the agency to offer complainant
the Agricultural Specialist position, pay complainant $7,500.00 in
non-pecuniary damages, and awarded complainant reasonable attorney's
fees and costs.
The agency asserts that it issued and filed its Final Order/Notice of
Appeal by fax with the Commission on September 26, 2008. On December
15, 2008, the agency sought an extension of time to file a statement in
support of its appeal. On December 22, 2008, the Commission informed the
agency that the Commission had no record of having received an appeal from
the agency and that if the agency wished to appeal the AJ's decision,
it must submit evidence (i.e., a fax confirmation sheet) showing that
the appeal was timely filed. In response, the agency maintained that
its appeal was filed timely; however, it was unable to produce the fax
confirmation sheet or any other evidence indicating such. The agency
contended that it had no record of any problems in completing its standard
procedure in filing an appeal with the Commission and conducted itself
as if the appeal had been properly filed. Finally, the agency included
an unsworn declaration by the former EEO Complaints Manager stating that
a contract employee should have faxed the final order to the Commission
on September 26, 2008, however there was no indication that it was or was
not faxed. The agency noted that the employee responsible for overseeing
the appeals process is no longer employed by the contractor and could not
provide a statement regarding the matter. The agency therefore requests
that in the interests of justice, the Commission deem the appeal timely
and issue a decision on its merits.
Complainant argues that the agency failed to submit evidence proving that
the appeal was filed on September 26, 2008. Accordingly, complainant
requests that the agency's appeal be dismissed and that the AJ's findings
and order for relief be affirmed in its entirety.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.110(a), if an agency decides not to
fully implement the decision of an AJ, it must issue a final order and
simultaneously file an appeal with the Commission in accordance with 29
C.F.R. � 1614.403. A copy of the appeal must be appended to the final
order. The Commission's EEO Management Directive 110 (November 9, 1999)
(EEO MD-110) explains that if the agency does not issue a final order
and file an appeal simultaneously with the issuance of the order, the
AJ's decision will be deemed ratified by the agency upon the expiration
of the agency's 40-day period for accepting or not accepting the AJ's
decision. EEO MD-110, � 9-7, note 4.
In the instant case, we find that the agency filed its appeal in an
untimely manner. The agency has produced no evidence proving that
it timely filed its appeal with the Commission. Further, the agency
submitted no evidence justifying an extension of the time limitations.
Because the agency's appeal was untimely and without justification for
an extension of the time limitations period, we find that it failed to
take final action during the 40-day period set forth in the Commission's
regulations at 29 C.F.R. � 1614.110(a). Accordingly, the AJ's decision
became the final action of the agency. McCue v. United States Postal
Service, EEOC Appeal No. 01A13411 (August 8, 2002). Further, because
the agency's failure to timely file its appeal constituted a failure to
take action during the 40-day period, the agency cannot challenge any
aspect of the AJ's decision. McCue, supra. The Commission will not
address the merits of the AJ's decision nor make a determination as to
the appropriateness of the remedy provided.
CONCLUSION
Accordingly, the agency's appeal is DISMISSED. The agency's final
order is VACATED. The Commission directs the agency to provide relief
consistent with the AJ's decision, as set out in the Order below.
ORDER
The agency shall take the following remedial actions:
1. The agency shall offer to employ complainant as an Agricultural
Specialist, at the location he would have been placed in 2005, but
for its conduct (or some other mutually agreeable position/location),
within thirty (30) calendar days. Complainant shall be given a minimum
of 30 calendar days from receipt of the offer within which to accept or
decline the offer. Failure to accept the offer within the time period
set by the agency will be considered a rejection of the offer, unless
complainant can show that circumstances beyond his control prevented a
response within the time limit.
2. The agency shall determine and pay complainant back pay (with interest,
if applicable) and other benefits due complainant pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. The agency's determination shall be based
on the fact that, absent discrimination complainant would have been
selected for an Agricultural Specialist position in September 2005, and
subsequently would have received all career ladder promotions to which
an employee who performed in a fully successful manner was entitled.
If complainant declines to accept the position with the agency, the
back pay period for the Agricultural Specialist position shall end on
the date he declines the offer of promotion.
3. The agency shall pay complainant $ 7,500.00, in non-pecuniary damages.
4. The agency shall pay complainant reasonable attorney's fees and costs.
5. The agency shall consider taking appropriate disciplinary action
against the responsible management officials. 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).
6. The agency shall require that the responsible management officials
attend a minimum of eight hours of EEO training on the laws prohibiting
employment discrimination, paying particular attention to agency's
obligations under the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. 791 et seq.
7. The agency shall immediately post a notice in accordance with the
paragraph below.
POSTING ORDER (G0900)
The Department of Homeland Security is ordered to post at its Office of
Internal Affairs - Personnel Security Division, Washington, DC 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 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 (R0408)
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 (Z1008)
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
June 4, 2010________________
Date
2
0720090021
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0720090021