01983912
05-18-2000
Darryl A. Williams, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
Darryl A. Williams v. Department of Justice
01983912
May 18, 2000
Darryl A. Williams, )
Complainant, )
)
v. ) Appeal No. 01983912
) Agency No. P-94-8599
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
________________________________)
DECISION
Complainant filed an EEO complaint which was defined by the agency as
alleging that complainant was discriminated against on the basis of race
when he was placed on indefinite suspension on December 29, 1993.<1>
Complainant requested a hearing before an EEOC Administrative Judge,
but by letter dated August 1, 1995, an EEOC Administrative Judge remanded
the matter to the agency "because it appears to be a mixed case which is
heard by the Merit Systems Protection Board [MSPB]." On October 5, 1995
the agency issued a decision on the complaint finding no discrimination.
The October 5, 1995 decision provided appeal rights to the MSPB, but
not to the EEOC.
On October 25, 1995 complainant filed an appeal with the MSPB from the
agency's October 5, 1995 decision. On March 25, 1996 the MSPB issued
an Initial Decision dismissing the appeal for lack of jurisdiction.
The MSPB found that because the indefinite suspension action had been
canceled, there was "no longer a case or controversy before the Board
over which the Board may exercise jurisdiction." Complainant then filed
a petition for review with the MSPB. The MSPB issued an Order on May 20,
1996 dismissing the petition for review as withdrawn.
By letter dated June 26, 1996, complainant informed the agency that he
was requesting a hearing before an EEOC Administrative Judge. The agency
subsequently requested a hearing and also filed a motion with the EEOC
Administrative Judge seeking dismissal of the complaint on the grounds
that the instant matter was part of a class action suit filed in a United
States district court which was settled. On December 29, 1997, the EEOC
Administrative Judge issued an Order remanding the complaint to the agency
to determine whether the matter was properly referred for a hearing.
By letter dated March 23, 1998 the agency informed complainant:
A final agency decision was issued in your complaint on October 5, 1995.
Therefore, we are considering your complaint as closed. You may
appeal the final agency decision and your right to a hearing before an
Administrative Judge of the Equal Employment Opportunity Commission to
the Office of Federal Operations, [EEOC] . . .
Complainant filed the instant appeal on April 17, 1998. In the instant
appeal complainant argues that he has been improperly denied his right to
a hearing before an EEOC Administrative Judge. We agree with complainant.
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). An aggrieved person
may initially file a mixed case complaint with an agency or may file a
mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151,
but not both. 29 C.F.R. � 1614.302(b). EEOC Regulation 29 C.F.R. �
1614.302(c)(2)(ii) provides: "If the MSPB's administrative judge finds
that MSPB does not have jurisdiction over the matter, the agency shall
recommence processing of the mixed case complaint as a non-mixed case
EEO complaint." The MSPB found that the MSPB did not have jurisdiction
in the instant matter. Pursuant to 29 C.F.R. � 1614.302(c)(2)(ii), we
find that the case is now a non-mixed EEO complaint. Therefore, we find
that the agency shall recommence processing the matter as a non-mixed
EEO complaint. 29 C.F.R. � 1614.302(c)(2)(ii). Complainant has not been
provided a hearing before an EEOC Administrative Judge, as is required,
if requested and otherwise appropriate, in non-mixed EEO complaints.
See 64 Fed. Reg. 37,644, 37657 (to be codified and hereinafter cited as
29 C.F.R. � 1614.109).
In the instant matter the agency is essentially claiming that the October
5, 1995 agency decision finding no discrimination is the agency final
decision. This is improper because complainant has been denied his right
to a hearing pursuant to � 1614.109. The EEOC Administrative Judge has
not dismissed the instant matter and we do not address in this decision
whether the instant matter has been settled as part of a class action.
The agency has not dismissed the instant complaint on such grounds.
Therefore, we shall remand the complaint so that the agency may re-request
that the Commission appoint an administrative judge to conduct a hearing
on the matter.
The agency's decision finding no discrimination is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC field
office to schedule a hearing in an expeditious manner. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 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 herein 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 the regulation
set forth at 64 Fed. Reg. 37,644, 37657 (1999) (to be codified as 29
C.F.R. � 1614.110).
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 18, 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.