0120090166_2
02-05-2009
Irving B. Jeffress, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Irving B. Jeffress,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120090166
Agency No. OCO072402
Hearing No. 531-2008-00227X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 23, 2008, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), 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. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American), sex (male), age
(56), and reprisal for prior protected EEO activity under Title VII of
the Civil Rights Act of 1964 when he was not selected for the position
of Fiscal Management Analyst, GS-501-11, advertised under vacancy
announcement L-3034.
Briefly, complainant filed an EEO complaint concerning the above
issue. The matter was investigated and complainant requested a
hearing. However, when complainant did not respond to an Order to Show
Cause concerning certain discovery requests, the Administrative Judge
issued a dismissal in accordance with his sanctions authority under 29
C.F.R. � 1614.109(f)(3), and remanded the complaint back to the agency
"to take appropriate action."
In its final action, the agency dismissed the complaint "for the reasons
set forth by the AJ" pursuant to "29 C.F.R. � 1614.107." The instant
appeal followed.
While the agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107,
it did not identify a specific ground for the dismissal, referring only
to the AJ's decision. However, a fair reading of the AJ's decision
indicates that the AJ was not dismissing the complaint pursuant to
one of the reasons enunciated in 29 C.F.R. � 1614.107, but was rather
dismissing complainant's hearings request as a sanction for his failure
to respond to the AJ's show cause order pursuant to the AJ's authority
under 29 C.F.R. � 1614.109 (f)(3). The AJ then remanded the case back
to the agency for further processing.
A review of the record indicates that the matter was investigated
and statements from involved parties were taken. Generally, the
Commission has held that an agency should not dismiss a complaint when
it has sufficient information upon which to base an adjudication on
the merits. See Ross v. United States Postal Service, EEOC. Request
No. 05900693 (August 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (April 12, 1990). Thus, the Commission finds
that there is sufficient information in the record for the agency to issue
a decision based on the record. The Commission concludes that the AJ's
statement that the agency was to take appropriate action is construed
to mean that complainant's request for a hearing was dismissed and the
matter remanded for a final decision on the merits by the agency.
Accordingly, the complaint is hereby remanded to the agency for issuance
of a final decision on the merits.
ORDER
The agency is ordered to issue a final decision on the merits within
forty five (45) calendar days of the date this decision becomes final.
A copy of the agency's final agency decision must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 (M1208)
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), 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 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 5, 2009
__________________
Date
2
0120090166
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090166