0720080047
02-04-2009
Moses S. Nielsen, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice (Bureau of Prisons), Agency.
Moses S. Nielsen,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice
(Bureau of Prisons),
Agency.
Appeal No. 0720080047
Agency No. P-2005-0098
DECISION
Following its June 18, 2008 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a).
On appeal, the agency requests that the Commission vacate the prior
processing of complainant's claim and remand the matter to the agency
for processing as a mixed case.
In a formal EEO complaint dated January 31, 2005, complainant alleged
that the agency discriminated against him, in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., based on disability (July 9, 2003 work-related
injury) and reprisal for prior EEO activity when it subjected him to
harassment and terminated his employment, citing "Inability to Perform
the Duties of Your Position." The termination was effective November
6, 2004. The agency investigated complainant's formal complaint1 and,
subsequently, informed him of the right to request a hearing before
an EEOC administrative judge (AJ) or an immediate final decision.
Complainant chose the former. Without a hearing, in a decision dated May
2, 2008, the AJ found no discrimination. The instant appeal from the
agency followed. On appeal, the agency asserts that it erred when it
failed to process the complaint as a mixed case. Therefore, it argues
that the complaint should never have been adjudicated by an EEOC AJ.
Accordingly, although the AJ determined that the agency should prevail
in this matter, the agency asks that the AJ's decision be vacated,
and the complaint remanded to the agency for issuance of a new final
decision providing complainant with appeal rights to the MSPB.2
Based on the above, we vacate the AJ's decision concerning the instant
claim of removal and remand the matter to the agency for the issuance
of a decision pursuant to 29 C.F.R. � 1614.302(d)(3) with appropriate
mixed case appeal rights.
ORDER
To the extent that it has not already done so, the agency is ordered
to process the remanded claim of removal in accordance with 29 C.F.R. �
1614.302 et seq. and issue a new final decision with appropriate mixed
case appeal rights within thirty (30) calendar days of the date this
decision becomes final.
A copy of the agency's new final decision with appropriate appeal rights
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 4, 2009
__________________
Date
1 We note that in Nielsen v. Dep't of Justice (Bureau of Prisons),
EEOC Appeal No. 0120061713 (July 30, 2007), the Commission denied
certification of a class complaint and remanded the instant complaint
to the agency for processing as an individual complaint.
2 The agency asserted that it has already provided complainant with
appeal rights to the Merit Systems Protection Board (MSPB). We note that,
as of January 29, 2009, the MSPB does not have record of an appeal from
complainant regarding his termination.
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0720080047
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720080047