0120160951
03-11-2016
Erich A.,1 Complainant, v. Penny Pritzker, Secretary, Department of Commerce, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Erich A.,1
Complainant,
v.
Penny Pritzker,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120160951
Agency No. 57201300163
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) concerning his complaint of unlawful employment discrimination.
At this juncture, the Commission does not have the complaint file. However, the record reflects that Complainant filed an EEO complaint (Agency Complaint No. 57-2013-00163) alleging he had been subjected to ongoing discriminatory harassment/hostile work environment on the bases of his race, national origin and/or retaliation for prior EEO activity. In January 2014, the Agency sent Complainant a copy of the Report of Investigation (ROI) concerning his complaint, along with his right to request a hearing or a final agency decision (FAD). However, Complainant was on military duty deployed overseas and the package was returned to the Agency as unclaimed. Thereafter, the Agency resent Complainant the ROI and right to request a hearing, most recently on November 30, 2015.
On December 29, 2015, Complainant signed a form indicating he was requesting a hearing. The Agency forwarded the request to EEOC's Hearing Unit in Baltimore, which acknowledged its receipt on January 4, 2016. The Agency apparently sent the complaint file to the Hearings Unit under cover of letter dated January 28, 2016.
While it is unclear what happened next, EEOC records do not indicate that a hearing has been docketed in this matter.2 Instead, the record contains a January 14, 2016 letter from an EEOC Administrative Judge (AJ) with the Baltimore Hearings Unit to Complainant indicating that his "appeal" was being forwarded to the EEOC's Office of Federal Operations. This appears to be in response to a document, dated December 29, 2015, filed with the AJ and entitled "Complainant's Brief In Support of Appeal."
After careful examination of the limited record before us, we find that a fair reading of Complainant's brief in support of his "appeal" is that he was intending it as a brief in support of his December 2015 hearing request, and he used the word "appeal" inadvertently. The Agency, in response to the "appeal," states that it has never issued an FAD on the matter, and that Complainant has misconstrued its letters transmitting the ROI as a FAD.
Because no FAD has been issued in this matter, and because it is clear that Complainant is seeking a hearing, we are dismissing the instant appeal. We are remanding the matter to ensure that Complainant's request for a hearing is processed.
The appeal is DISMISSED.
ORDER
Within thirty (30) days of the date this decision becomes final, the Agency shall file a renewed request for hearing on Agency Complaint No. 57-2013-00163 with EEOC's Baltimore Field Office Hearings Unit. The Agency should include a copy of this decision with its correspondence.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0815)
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), 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, P.O. Box 77960, Washington, DC 20013. 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 (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
March 11, 2016
__________________
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 Records indicate that Complainant has a different hearing pending, Hearing No. 531-2013-00006X (hearing request filed in October 2012), on a previous complaint, Agency No. 10-57-02585.
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