0120090553
02-05-2009
Mostafa Eldakdoky, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture, Agency.
Mostafa Eldakdoky,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 0120090553
Agency No. FSIS200601958
Hearing No. 570-2007-00490X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated September 25, 2008, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
The record reflects the following chronology of events. Complainant filed
a formal EEO complaint alleging that he was subjected to discrimination
and harassment on the bases of race (Middle Eastern), national origin
(Egyptian), religion (Muslim) and in reprisal for prior protected EEO
activity.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing.
An AJ was assigned to the complaint, and on June 12, 2007, the AJ issued
an "Acknowledgment and Order." Complainant states that on June 28,
2007, he sent a Discovery letter to the agency, to which the agency
has never replied. On August 1, 2007, the agency deposed complainant
concerning his complaint. On August 2, 2007, complainant submitted
a letter to the agency representative, with a copy to the AJ, stating
"Please take notice that I will be out of the country for Family Emergency
until September 25, 2007." In an Order dated August 10, 2007, the AJ
cancelled the hearing and remanded the complaint to the agency for a final
decision on the basis that "[c]omplainant did not give any details for
the undersigned administrative judge to make a finding that he stated
good cause to hold this hearing procedure in abeyance while he is out
of the country." The AJ noted that in the Acknowledgment and Order he
had stated that extensions of filing dates and postponements will not be
granted absent a prompt request in writing and a showing of good cause.
On September 27, 2007, complainant sent a request to the AJ to reconsider
his decision and continue with the hearing process. On September 28,
2007, complainant received a letter from the AJ which indicated that he
had received complainant's letter, however, he rejected the submission
because it was "deficient in the area(s) indicated." The AJ did not,
however, specify a deficiency.
In November 2007, prior to the agency issuing a final decision,
complainant filed an appeal with Commission from the AJ's August 10, 2007
Order, which was docketed as EEOC Appeal No. 0120080679. On September
25, 2008, the agency issued a final decision in the instant matter.
Therein, the agency dismissed complainant's complaint for untimely EEO
Counselor contact. In addition, the agency proceeded to address the
merits of complainant's complaint finding no discrimination. In October
2008, complainant filed an appeal with the Commission from the agency's
September 25, 2008 final decision, which was docketed as EEOC Appeal
No. 0120090553.
The Commission administratively closed EEOC Appeal No. 0120080679 by
letter dated December 31, 2008. Therein, the Commission stated that
"[t]he record...is being closed because this appeal was premature
when filed. Your new appeal, docketed as EEOC Appeal No. 0120090553,
is being processed by our office."
Upon review of the record, the Commission finds that the AJ improperly
cancelled the hearing and remanded the matter to the agency in his Order
dated August 10, 2007. The Commission notes initially that in his letter
to the AJ, complainant did not ask for an extension of any filing date
nor any form of postponement. He simply notified the agency and the
AJ of his whereabouts for the following several weeks. There is no
indication that complainant failed to comply with any specific Order of
the AJ just because he was going to be out of the country for a period
of time. There is no evidence that complainant failed to cooperate with
any discovery request by the agency. There is also no indication that
the AJ had scheduled a hearing and/or that when he submitted the letter in
August 2007, complainant was in effect advising the agency and the AJ that
he would not appear at any scheduled hearing or pre-hearing conference.1
Even assuming, however, that complainant's letter constituted a request
for a stay of the hearing, according to EEO MD-110, Chapter 7, Section
III(D)(16), "[a]n Administrative Judge may hold a hearing in abeyance in
the event that a party is unable to proceed with the hearing for reasons
such as illness, military assignment, or for other good cause shown."
In this case, the illness of a close family member was the reason that
complainant needed to be out of the country, however the AJ in this
case did not issue complainant (who was proceeding pro se in the instant
matter) a "Notice to Show Cause" why the hearing process should be held
in abeyance. Instead he immediately concluded that complainant's one
sentence explanation for leaving the country was inadequate, and he
cancelled the hearing process and remanded the complaint to the agency.
We find that the AJ abused his discretion by finding that under these
circumstances, complainant "has waived his request for hearing by failing
to timely prosecute his Complaint." We note additionally that although
the AJ correctly noted that "the administrative judge is required to
issue a decision upon this matter within 180 days of the receipt of the
Complaint file", the date of complainant's intended return to the United
States would only have been 105 days after the AJ issued his initial
Acknowledgment and Order.2
Accordingly, the agency's decision is VACATED and the complaint is
REMANDED for further processing in accordance with the Order below.
ORDER
The agency shall request that the Hearings Unit of the Washington Field
Office schedule a hearing. The agency is directed to submit a copy of the
complaint file to the EEOC District Office within 15 calendar days of the
date this decision becomes final for a decision from an Administrative
Judge in accordance with 29 C.F.R. � 1614.109. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the EEOC District
Office. After receiving a decision from the EEOC Administrative Judge, the
agency shall issue a decision in accordance with 29 C.F.R. � 1614.110.
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 5, 2009
__________________
Date
1 There is no indication in the record why any outstanding discovery
(or Pre-hearing conference) could not be conducted via telephone,
facsimile, internet or other some other means while complainant was out
of the country. There is also no indication that if the AJ scheduled
a hearing, complainant would be unwilling or unable to travel back to
the United States in order to appear at the hearing itself.
2 Because we find that the AJ improperly remanded this matter to the
agency, we need not address the agency's September 25, 2008 final decision
dismissing complainant's complaint and in the alternative finding no
discrimination.
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0120090553
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013