Kipp Anderson, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 2, 2003
01a20075 (E.E.O.C. Jan. 2, 2003)

01a20075

01-02-2003

Kipp Anderson, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Kipp Anderson v. Department of Agriculture

01A20075

01-02-03

.

Kipp Anderson,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A20075

Agency No. 990472

DECISION

Kipp Anderson (complainant) filed an appeal from the September 7, 2001,

final decision of the Department of Agriculture (agency) with regard to

his complaint of unlawful employment discrimination in violation of Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.

The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted

in accordance with 29 C.F.R. � 1614.405. For the reasons that follow,

the agency's decision is VACATED.

On appeal, complainant averred that he received the agency's notice of his

right to request a hearing, which accompanied the Report of Investigation

(ROI), on March 23, 2001. He has submitted a copy of the notice dated

November 3, 2000, that indicates that it was re-mailed on March 13, 2001,

and other documents demonstrating that he sent a request for a hearing

to the agency on April 20, 2001, via certified mail, which the agency

received on April 27, 2001, and to the St. Louis EEOC District Office,

which was received on April 23, 2001.

The agency did not submit a response to complainant's appeal. In its

final decision, the agency merely asserted that the ROI was "provided

to the Complainant on November 3, 2000," but that he did not request a

hearing "within the allotted thirty (30) days." The record, however,

does not contain a copy of the notice or a return receipt showing that

the agency sent the ROI or that complainant received it.

Here, the agency, although on notice, did not respond to complainant's

assertions, nor can it demonstrate that complainant did not receive the

Notice in March 2001, since no documents are contained in the record.

Because there is nothing in the record to dispute complainant's assertions

and submissions, and the agency has not shown otherwise, we find that the

facts as stated by complainant are more likely than not true. For this

reason, we find that complainant requested a hearing in a timely manner.

CONCLUSION

Accordingly, the agency's final decision is VACATED and is remanded for

a hearing. The agency is directed to comply with the Order, below.

ORDER

Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall submit a request for a hearing and a copy of

the complaint file to the to the appropriate EEOC District Office

Hearings Unit. Thereafter, the Administrative Judge shall issue a

decision on the complaint in accordance with the regulation set forth

at 29 C.F.R. � 1614.109, and the agency shall issue a final action

in accordance with the regulation set forth at 29 C.F.R. � 1614.110.

The agency shall provide written notification to the Compliance Officer,

at the address set forth below, that the request and complaint file have

been transmitted to the Hearings Unit.

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

___01-02-03_______________

Date