Eugene Carr, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 21, 2000
01986408 (E.E.O.C. Apr. 21, 2000)

01986408

04-21-2000

Eugene Carr, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Eugene Carr v. Department of Agriculture

01986408

April 21, 2000

Eugene Carr, )

Complainant, )

) Appeal No. 01986408

v. ) Agency No. 950825

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

DECISION

The complainant timely initiated an appeal from a final agency decision

dated July 7, 1998, concerning his complaint of unlawful employment

discrimination on the bases of race (white), sex (male), and age (63),

in violation of Title VII of the Civil Rights Act of 1964, 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.<1> The complainant

alleges he was discriminated against when he was not selected for a

Supervisory Equal Employment Specialist, GS-260-14/15 position under

vacancy announcement (VAN) numbers OCRS-5-26, OCRS-5-38 and OCRS-5-25.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to

be codified at 29 C.F.R. � 1614.405). For the following reasons, the

Commission vacates and remands the agency's decision.

The record reveals that the complainant received a copy of the

investigative file and a letter dated July 22, 1997, informing him of

his right to elect a hearing on the matter or a final agency decision

based on the investigative file. The record shows and the complainant

swears that he did not receive the above package until August 22, 1997.

Under our regulations, the complainant had 30 days from receipt of the

investigative file to request a hearing, making September 21, 1997,

the last day on which he could do so. The record further shows that

on September 8, 1997, the complainant requested a hearing on the matter

which he sent by certified mail to the agency. On September 15, 1997,

the record shows that the agency received the complainant's election of

a hearing.

On July 7, 1998, the agency issued a final decision without regard to the

complainant's election for a hearing. In its final decision the agency

stated that "[t]he complainant did not request either option within the

allotted 30 days."

On appeal, complainant contends, among other things, that he was entitled

to the hearing which he had properly requested within 30 days of receipt

of the investigative file and notice. Therefore, the agency had no

right to render a final decision without the requested hearing.

The agency stands on the record and requests that we affirm its final

decision.

The Commission has previously held that a complainant's actual receipt of

the notice of rights was necessary to commence the running of the time

limitation in which to request a hearing. See Erdmanv. U.S. Department

of the Army, EEOC Request No. 05950215 (May 23 1996). After a thorough

review of the record, we find that the evidence is sufficient to allow

a determination that the complainant properly requested a hearing which

the agency did not honor.

Our regulations and the EEOC Management Directive (MD) 110, as revised,

November 9, 1999 for 29 C.F.R. Part 1614 require complainants to elect to

have a hearing and decision from an administrative judge or to request

an immediate final decision from the agency with which the complaint

was filed. See 64 Fed. Reg 37,644, 37,656-57 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.108(f)) and EEOC Management

Directive (MD) 110, as revised, November 9, 1999, Chapter 5, page 5-3.

As indicated in this decision, the agency does not dispute nor provide

evidence or argument that the complainant received the election notice

at an earlier date, nor does the agency state that it did not receive

the complainant's election form requesting a hearing.

We therefore vacate the agency's finding of no discrimination, and remand

this matter for further processing in accordance with this decision and

the ORDER set forth below.

ORDER

Within thirty (30) calendar days from the date this decision becomes

final, the agency shall provide a copy of the complaint file to the

EEOC District Office with a copy of this decision and the complainant's

request for a hearing. See 64 Fed. Reg. 37,644, 37,657 (1999) (to be

codified at 29 C.F.R. � 1614.108(g)).

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:

April 21, 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 after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

Date

1 On 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.