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.