01a05515
11-28-2000
Curtis D. Patterson, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Curtis D. Patterson v. Department of Veterans Affairs
01A05515
November 28, 2000
.
Curtis D. Patterson,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05515
Agency No. 99-0833
DECISION
Curtis D. Patterson (complainant) filed a timely appeal with this
Commission from a final agency decision (FAD) dated July 11, 2000
concerning his 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.<1> In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (African American), sex (male)
and disability (ulcerative colitis, malaise and ankylosing spondylitis)
when he was terminated from his temporary appointment as a Patient
Services Assistant and not hired for a permanent position.
Believing he was a victim of discrimination, complainant sought EEO
counseling and subsequently filed a formal complaint on October 3, 1998.
At the conclusion of the investigation, complainant was provided with
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). However, when complainant failed to
respond to the AJ's pre-hearing orders, the AJ found that complainant
waived his right to a hearing and returned the case to the agency for
a final decision. The agency issued a final decision on the merits,
finding no discrimination.
On appeal, complainant contends that he did not respond to the pre-hearing
orders of the AJ because he did not receive them. He alleges that in
January 2000 he forwarded his request for a hearing to the Birmingham
EEOC office, and sent a copy of this request to the appropriate agency
office. When he did not receive a response after six months, he called
the Birmingham office to inquire as to the status of his case. He alleges
that he was first told that the case was missing, but eventually learned
that his case had been assigned to an AJ at the Birmingham office.
Not until he received the FAD, on July 17, 2000, did he learn that his
case had been returned to the agency due to his lack of response to the
AJ's pre-hearing orders. Upon receiving this information, complainant
alleges that he again spoke with an official at the Birmingham office
and was told that the pre-hearing orders were sent to an old address.
Complainant argues that since he included his current address on his
request for a hearing and the FAD was sent to the current address,
the failure of the EEOC office to send the pre-hearing orders to his
current address should not result in his loss of the right to a hearing.
The agency makes no response to this argument and simply asks that its
FAD be affirmed.
After a careful review of the record, we find that complainant failed
to respond to the pre-hearing orders because they were sent to the
wrong address. The agency had notice of complainant's correct address
prior to forwarding his file to the AJ, as evidenced by the fact that the
investigative file and the letter informing complainant of his right to
request a hearing were sent to complainant's current address. Moreover,
complainant included his current address on his request for a hearing.
The fact that the AJ's pre-hearing orders were nonetheless mailed to the
wrong address does not support the conclusion that complainant waived
his right to a hearing. Complainant cannot be denied that right for
failure to comply with orders of which he had no notice. Accordingly,
the agency's decision is VACATED, and the complaint is REMANDED for
further processing as provided below.
ORDER
The complaint is remanded to the Hearings Unit of Birmingham District
EEOC office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit 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 (K0900)
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, 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 28, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.