Brett W. Whitlock, Complainant,v.Janet Napolitano, Secretary, Department of Homeland Security, (Customs and Border Protection), Agency.

Equal Employment Opportunity CommissionJun 4, 2010
0720090021 (E.E.O.C. Jun. 4, 2010)

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

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0720090021

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0720090021