0120161595
02-23-2018
Del V.,1 Complainant, v. Kirstjen M. Nielsen, Secretary, Department of Homeland Security (Immigration and Customs Enforcement), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Del V.,1
Complainant,
v.
Kirstjen M. Nielsen,
Secretary,
Department of Homeland Security
(Immigration and Customs Enforcement),
Agency.
Appeal No. 0120161595
Hearing No. 560-2015-0057X
Agency No. HS-ICE-00962-2014
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Deportation Officer at the Agency's ICE Air Operations facility in Kansas City, Missouri.
On October 30, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and age when he was issued a management-directed reassignment notification relocating him to Mesa, Arizona, effective May 1, 2014. Complainant raised a second claim that he was subjected to a hostile work environment on the basis of reprisal when, from August 28, 2013, and continuing, Complainant and other employees were negatively referenced in an interoffice email.
The record indicates that eight employees filed identical EEO complaints raising the same claims. They sought to raise a class action, but on January 17, 2014, an EEOC Administrative Judge (AJ) found that they failed to meet the criteria for class certification. The Agency adopted the AJ's decision and processed Complainant's claim as an individual complaint of discrimination. The Agency investigated the complaint, and thereafter Complainant requested a hearing. Complainant subsequently withdrew his request for the hearing, and on August 31, 2015, the AJ ordered the Agency to issue a final decision on the matter. When the Agency failed to issue a final order, Complainant filed the instant appeal.
In response to the appeal, the Agency admits that it has yet to issue a final Agency decision on the matter.
ANALYSIS AND FINDINGS
The Commission's regulations at 29 C.F.R. � 1614.110(b) state that when an Agency has received a request for a final decision without a hearing, the Agency shall issue a final decision "within 60 days of receiving notification that Complainant has requested an immediate decision from the Agency." In the instant case, the AJ remanded the complaint to the Agency for issuance of a final decision, pursuant to 29 C.F.R. � 1614.110(b), in August 2015. The Agency admits as of April 8, 2016, eight months later, it had not issued its final decision. To date, the Agency has provided no additional evidence that it has issued a final decision. Pursuant to 29 C.F.R. � 1614.404(c), the Agency is reminded that if it fails to comply with the Order below, the Commission may issue a sanction against it that could include a decision in favor of Complainant.
Accordingly, we are remanding the matter to the Agency for issuance of a final decision. The Agency shall comply with the ORDER as set forth below.
ORDER
Within thirty (30) calendar days of the date this decision is issued, the Agency shall issue its final decision pursuant to 29 C.F.R. � 1614.110(b), with appropriate appeal rights to this Commission.2
A copy of the Agency's final decision must be sent to the Compliance Officer as referenced below.
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
February 23, 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.
2 Complainant is entitled to file a new appeal when a final Agency decision is issued.
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