0120172810
06-14-2018
Carmen V.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carmen V.,1
Complainant,
v.
Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120172810
Hearing No. 410-2016-00214X
Agency No. NPS150679
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's letter dated March 29, 2017, administratively closing his EEO complaint alleging 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.
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic), sex (male), disability, and reprisal when:
(1) since March 2011 and continuing, Complainant has been required to perform higher graded duties without compensation;
(2) around April 24, 2015, management rescinded Complainant's approval to participate as a Concession's Panel member representing the region at Cumberland Island, Georgia; and
(3) from June 22-30, 2015, management denied Complainant's request for 2 hours of compensatory time off to complete a deadline.
Complainant also raised a hostile work environment claim, citing a number of different incidents involving a named individual.
The Agency accepted the complaint, investigated the claims, and thereafter Complainant elected to have a hearing. However, on February 10, 2017, Complainant, though his attorney, filed notice of "Complainant's Withdrawal of Hearing Request" with the EEOC Administrative Judge (AJ). In that notice, Complainant specifically requested that the complaint "be returned to the Agency for issuance of a Final Agency Decision based upon the investigative record."
However, on March 1, 2017, the AJ issued an Order of Dismissal "based on Complainant's Notice of Withdrawal of Complaint." The complaint was dismissed with prejudice.
On March 29, 2017, the Agency issued a letter stating it was administratively closing the complaint based on the AJ's notice that Complainant had withdrawn the complaint.
Thereafter, Complainant's attorney filed the instant appeal, arguing he never withdrew the complaint. Rather, he only withdrew his request for a hearing and sought a final Agency decision.
After review of the record, we conclude that Complainant only withdrew his hearing request and asked that the complaint be remanded to the Agency for a final decision based on the evidence developed during the investigation. He did not withdraw his complaint, and the Agency erred in administratively closing the matter rather than issuing a final decision on the merits of the complaint.
As such, we vacate the Agency's administrative closure and remand the complaint for further processing in accordance with the following Order.
ORDER
Within sixty (60) calendar days of the date of this decision, the Agency shall issue a final Agency decision, pursuant to 29 C.F.R. � 1614.110(b), on the complaint.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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