01a55263_r
12-12-2005
Jon P. Joyner, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security Agency.
Jon P. Joyner v. Department of Homeland Security
01A55263
December 12, 2005
.
Jon P. Joyner,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security
Agency.
Appeal No. 01A55263
Agency No. I-03-W090
Hearing No. 350-2004-00068X
DECISION
Complainant filed an appeal with this Commission from the June 10,
2005 agency decision dismissing his complaint.
Complainant alleged that he was discriminated against on the bases of
race (African-American), color (African-American) and in reprisal for
prior EEO activity when: (1) in November 2002, complainant was informed
by his supervisor that he was not selected for Supervisory Border
Patrol Agent (SBPA), vacancy announcement numbers MSPII-02-DGL-532 and
MSPII-02-DGL-535; (2) on February 19, 2003, complainant was informed
that he was not selected for the position of SBPA, vacancy announcement
numbers MSPII-02-DGL-532 and MSPII-02-DGL-535; (3) in February 2003,
a supervisor made derogatory remarks about him in front of co-workers
and other supervisors; and (4) in March 2003, complainant was bypassed
for the opportunity to volunteer as a temporary supervisor.
The record reveals that complainant requested a hearing before an EEOC
Administrative Judge (AJ). On May 2, 2005, in a Remand for Final Agency
Decision (Remand), the AJ dismissed complainant's hearing request for
failure to respond to the AJ's Notice to Show Cause.<1> In her Remand,
the AJ ordered the agency to issue a final decision within 60 days based
on the investigative record.
In a May 3, 2005 letter to the parties, the AJ noted that after issuing
the Remand, she received a letter from complainant, dated May 2, 2005,
which was sent to her by facsimile on May 2, 2005. In complainant's
letter to the AJ, complainant requested that his case be decided without a
hearing and if his case could not be decided without a hearing, that his
case be dismissed. Complainant also noted in his request that the main
factor for his request that his case be decided without a hearing was
that he did not have any representation to assist him in preparing his
case and that he was not versed in "courtroom demeanor" or proceedings.
In her May 3, 2005 letter, the AJ noted that she had already issued
her Remand and explained that the only authority an AJ had to issue
a decision without a hearing was pursuant to 29 C.F.R. � 1614.109(g),
i.e., where there was no genuine issue of material fact. The AJ also
noted that another AJ, previously assigned to this matter, had already
determined that the complaint could not be decided pursuant to 29 C.F.R. �
1614.109(g). In her letter, the AJ stated that because complainant
had requested that if his case could not be decided without a hearing
that it be dismissed, the agency could issue a decision indicating that
complainant had withdrawn his complaint.
The record also contains a May 25, 2005 letter from the AJ to the agency
in which the AJ noted that the case was being returned to the agency for
issuance of a decision by the agency as requested by the complainant in
his May 2, 2005 letter.
In its June 10, 2005 decision, the agency dismissed the complaint,
referring to complainant's letter of May 2, 2005, and noting that
complainant had knowingly volunteered to withdraw his EEO complaint in
its entirety from the EEO process.
Upon review, the Commission finds that the dismissal of the complaint by
the agency was improper. In the May 2, 2005 letter complainant requested
a decision without a hearing. Under the circumstances of this case, we do
not interpret complainant's request for a decision without a hearing as
a request by complainant to withdraw his complaint. Complainant wanted
a dismissal only if he could not have a decision without a hearing.
The agency has authority to issue a decision without a hearing pursuant
to 29 C.F.R. � 1614.110(b). Furthermore, the record reflects that in
her May 2, 2005 Remand, the AJ had already specifically ordered that
the agency issue a decision based on the investigative record in the
complaint even before receiving complainant's request for a decision
without a hearing.
Accordingly, the agency's decision dismissing the complaint is REVERSED
and the matter is REMANDED to the agency for issuance of a final
decision.<2>
ORDER
Within 60 calendar days of the date that this decision becomes final,
the agency shall issue a final decision on each issue of the complaint
and the rationale for dismissing any claims in the complaint. A copy
of the agency's final decision must be sent to the Compliance Officer
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 12, 2005
__________________
Date
1In the absence of a showing of good cause,
an AJ has the authority to sanction a party for failure to fully comply
with an order. See 29 C.F.R. � 1614.109(f)(3). The Commission has
recognized the dismissal of a request for hearing as a sanction.
2The Commission notes that in a decision, dated August 25, 2003, the
agency accepted claims 2 and 4 of the complaint but dismissed claims
1 and 3. Rather than address the complaint in a piecemeal manner, the
Commission will not determine the propriety of the agency's dismissal
of claims 1 and 3.