01A30035
02-10-2004
Denise Brent, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Bureau of Prisons), Agency.
Denise Brent v. Department of Justice
01A30035
February 10, 2004
.
Denise Brent,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Bureau of Prisons),
Agency.
Appeal No. 01A30035
Agency No. P210056
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
dated August 27, 2002, concerning her 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. In her complaint,
complainant alleged that she was discriminated against on the bases of
race (Black) and sex (female) when:
she was ordered off the Special Housing Unit A-Range by a Lieutenant
(L1); and
she was subjected to a pattern of harassment by her superiors.
The record reveals that during the relevant time, complainant was
employed as an Education Specialist at the agency's Federal Correctional
Institute in Yazoo City, Mississippi. Believing she was a victim of
discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on November 20, 2000. At the conclusion of
the investigation, complainant was informed of her right to request a
hearing before an EEOC Administrative Judge (AJ) or alternatively, to
receive a final decision by the agency. Complainant requested a hearing,
and, on January 23, 2002, the AJ apparently issued a Scheduling Order
instructing complainant to submit specific information relevant to her
complaint within ninety-five days. When, according to the AJ, complainant
failed to comply with the Scheduling Order within the required time,
the AJ determined that complainant had waived her right to a hearing.
On July 16, 2002, the AJ returned the case file to the agency for issuance
of a final agency decision. In its FAD, the agency made a finding of
no discrimination.
On appeal, complainant contends that on July 19, 2002, she contacted the
AJ and informed him that she had never received a Scheduling Order, which
explains why she had not submitted additional information relevant to her
complaint within ninety-five days pursuant to his order. The AJ refused
to reinstate her hearing request and allegedly instructed complainant
to follow �the appeal process.� Complainant now contends that through
no fault of her own, she was unfairly denied her right to a hearing.
The record contains no evidence that complainant received the Scheduling
Order. Additionally, there is no evidence that prior to remanding
the case to the agency, the AJ issued complainant a Notice and Order
to Show Cause for why the complaint should not be dismissed based on
complainant's failure to prosecute the complaint. Therefore, we are
unable to determine whether the Commission's procedures were properly
followed, or whether the appropriate sanction was to deny the hearing
request and remand the complaint to the agency for a final decision on
the merits of the complaint.
Accordingly, we VACATE the agency's decision and we REMAND the complaint
for a hearing in accordance with this decision and the ORDER below.
ORDER (E0900)
The agency shall submit to the Hearings Unit of the Birmingham District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. 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 (K0501)
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)
(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 (M0701)
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
February 10, 2004
__________________
Date