01a20075
01-02-2003
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