Henry L. Cohens, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 25, 1998
01972495 (E.E.O.C. Nov. 25, 1998)

01972495

11-25-1998

Henry L. Cohens, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Henry L. Cohens v. Department of Veterans Affairs

01972495

November 25, 1998

Henry L. Cohens, )

Appellant, )

)

v. ) Appeal No. 01972495

) Agency No. 94-1111

Togo D. West, Jr., ) Hearing No. 150-95-8101X

Secretary, )

Department of Veterans Affairs, )

Agency. )

___________________________________)

DECISION

On January 29, 1997, Henry L. Cohens (appellant) timely appealed the

final decision of the Department of Veterans Affairs (agency), dated

January 15, 1997, concluding he had not been discriminated against 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

(ADEA) of 1967, as amended, 29 U.S.C. �621 et seq. In his complaint,

appellant had alleged that officials at the agency's Medical Center

in Tampa, Florida, terminated him during his probationary period as

a Housekeeping Aide, on November 16, 1993, because of his race/color

(black) and/or age (DOB: 10/23/45). This appeal is accepted in accordance

with the provisions of EEOC Order No. 960.001.

The record establishes that, on March 31, 1994, appellant filed a formal

EEO complaint with the agency, alleging that the agency had discriminated

against him as referenced above. The agency accepted the complaint and

conducted an investigation. At the conclusion of the investigation,

appellant requested an administrative hearing before an Equal Employment

Opportunity Commission (EEOC) administrative judge (AJ).

The AJ notified the parties, by certified mail, that the hearing was

scheduled to begin on March 1, 1996. However, on that date, appellant

failed to appear. Appellant's attorney represented to the AJ that he

had notified his client of the hearing date and could not provide an

explanation for appellant's absence. Therefore, the AJ canceled the

hearing and remanded the case back to the agency with a recommendation

that appellant's complaint be dismissed for failure to prosecute.

The agency, however, decided the record contained sufficient evidence

to render a final decision on the merits of appellant's complaint,

and issued a decision concluding that the evidence of record did not

support appellant's allegations of discrimination. It is from this

decision that appellant now appeals.

On appeal, appellant requests that the agency's final decision be vacated

and he be afforded a hearing on his complaint. He averred that he

did not appear at the hearing because he did not know it was occurring.

He represented that had he known about the hearing he would have attended.

Appellant noted that the AJ referred to a certified mail return receipt

which she said indicated that appellant had notice of the hearing.

However, appellant stated that the address on the receipt was a former

residence, and "David", the person whose name appears in the signature

block of the return receipt is unknown to him. Appellant asserted that

he had informed his attorney of his new address when he moved and relied

upon the attorney to convey this information to all relevant parties.

Appellant further asserted that, despite his former attorney's

representations to the contrary, the attorney never informed him of the

hearing date. Appellant provided documentary evidence that he filed a

charge against his former attorney over this matter with the Florida Bar.

The Sixth Judicial Circuit Grievance Committee found probable cause

for violations of Rule 4-1.1 (Competence), Rule 4-1.3 (Diligence) and

Rule 4-14(a)(b) (Communications) of the Rules of Professional Conduct.

Thereafter, the Florida Supreme Court instituted disciplinary proceedings

against the attorney and, by order dated May 7, 1998, appellant's former

attorney was suspended from the practice of law in the state of Florida

for a period of three years for his mishandling of appellant's EEO case.

In light of this evidence presented by appellant, and in the interests

of justice, the Commission is persuaded that it would be appropriate

to vacate the agency's final decision and provide appellant with the

opportunity for a hearing on his complaint as requested. Accordingly,

the agency's decision is VACATED and the case is REMANDED to the agency,

pursuant to the following Order, for a hearing.

ORDER

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.109 et seq. Appellant is ORDERED, within thirty

(30) calendar days of the date this decision becomes final, to provide

the agency, in writing, with his current address and the name and

address of his current attorney. Within fifteen (15) calendar days

of its receipt of this information, the agency shall acknowledge to

the appellant that it has received the remanded complaint and advise

appellant that it has requested the appointment of an EEOC AJ pursuant to

29 C.F.R. �1614.109(a). The agency shall make every effort to expedite

the scheduling of a hearing on this matter.

A copy of the agency's letter of acknowledgment to appellant and a

copy of the notice requesting an EEOC AJ must be sent to the Compliance

Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).

If the appellant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. � l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

Nov 25, 1998

_________________ _______________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations