01A13026
07-23-2002
Lucius Ross, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Lucius Ross v. Department of the Army
01A13026
July 23, 2002
.
Lucius Ross,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13026
Agency No. ANBK0002A0090
DECISION
On February 17, 2000, complainant filed a formal equal employment
opportunity complaint of 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African-American) and disability (post traumatic
stress disorder) when he was forced to retire in December 1999. At the
conclusion of the investigation, complainant was provided a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge. The Administrative Judge denied complainant's hearing request
because complainant failed to submit requested information. The agency
subsequently issued a final decision, dated January 8, 2001, finding
no discrimination.
In its final decision, the agency stated that complainant had filed a
mixed case complaint and that consequently the agency had erroneously
granted complainant the right to request a hearing. However, the agency
gave complainant exclusive and appropriate appeal rights to the Merit
Systems Protection Board (MSPB). Complainant filed an appeal with the
agency which the agency forwarded to the MSPB. The MSPB docketed the
appeal as MSPB No. AT-0752-01-0343-I-1 and issued an initial decision
on April 26, 2001, dismissing the appeal for lack of jurisdiction.
We presume that the MSPB initial decision became final on May 31, 2001.
For reasons we cannot ascertain, the agency also forwarded a copy of
complainant's appeal to the Commission, and the Commission inadvertently
docketed it as an appeal on February 9, 2001. It is this appeal which
we now consider.
The Commission did not have appellate jurisdiction over this mixed case
complaint at the time the instant appeal was docketed. However, the
Commission is now aware that the MSPB dismissed complainant's complaint
for jurisdictional reasons. EEOC regulation 29 C.F.R. � 1614.302(b)
states that if an individual files a timely appeal with the MSPB from the
agency's processing of a mixed case complaint and the MSPB dismisses it
for jurisdictional reasons, the agency shall reissue a notice under 29
C.F.R. � 1614.108(f) giving the individual the right to elect between
a hearing before an Administrative Judge or an immediate final decision.
Although complainant has already received such a notice, we decline
to find that complainant has waived his right to a hearing because the
notice was received by complainant in error and consequently the EEOC
Administrative Judge did not have jurisdiction over the complaint when he
denied complainant's hearing request. Accordingly, we vacate the agency's
final decision and remand this matter to the agency to grant complainant
the opportunity to request a hearing before an EEOC Administrative Judge
or to receive a final agency decision. 29 C.F.R. � 1614.302(b).
ORDER
The agency is ordered to issue complainant a notice under 29 C.F.R. �
1614.108(f) giving complainant the right to elect between a hearing before
an EEOC Administrative Judge or an immediate final decision. The agency
shall issue this notice within forty (45) calendar days from the date
this decision becomes final. A copy of the agency's notice shall be
sent to the Compliance Officer as referenced herein. If complainant
declines to request a hearing before an EEOC Administrative Judge,
the agency is ordered to take action pursuant to 29 C.F.R. � 1614.110(b).
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
July 23, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.