01972495
11-25-1998
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