Ramon A. Jayme, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01974401 (E.E.O.C. Apr. 24, 2000)

01974401

04-24-2000

Ramon A. Jayme, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Ramon A. Jayme v. Department of Justice

01974401

April 24, 2000

Ramon A. Jayme, )

Complainant, )

)

v. ) Appeal No. 01974401

) Agency No. I-92-6005

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

______________________________________)

DECISION

Complainant timely initiated an appeal to the Equal Employment Opportunity

Commission (EEOC) from the final agency decision concerning his equal

employment opportunity (EEO) complaint, which alleged discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq., and the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq. The appeal is accepted by the Commission in

accordance with the provisions of 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).<1>

Complainant, an employee of the agency's Immigration and Naturalization

Service, filed a formal EEO complaint alleging that the agency

discriminated against him in violation of the above-referenced statutes

with regard to a denial of promotion, a proposed demotion, and harassment.

The agency investigated the complaint, provided complainant with a copy

of the resultant investigative report, and advised complainant of his

right to request either a hearing before an EEOC administrative judge

or an immediate final agency decision (FAD). According to the agency,

complainant did not respond to this notification; therefore, at the end

of the 30-day period allotted by regulation for a response the agency

proceeded to issue an FAD, in which it found no discrimination. It is

from this decision that complainant now appeals.

On appeal, complainant argues that he did, in fact, request a hearing.

Complainant provides copies of a request sent by facsimile transmission to

the agency at the designated office on the thirtieth day of the response

period, and the proof of mailing and certified-mail return-receipt card

for a copy that was mailed to the agency on the same date. Complainant

also provides a copy of the agency's January 24, 1996, letter notifying

him of his right to request a hearing, which complainant states he

received on January 26, 1996.

Complainant also posits an explanation for the agency's failure to

acknowledge his hearing request. Complainant notes that the agency

forwarded his complaint file from the EEO Office, where complaints are

processed, to the Complaints Adjudication Office, where FADs are issued,

prior to the expiration of the 30-day response period, causing his

request to not be associated with his file. Complainant's argument is

supported by the agency's acknowledgment, in its FAD, that his complaint

file was transferred to the Complaints Adjudication Office of February 14,

1996, twelve days prior to the expiration of the 30-day response period.

The agency was duly served with complainant's statement in support of

his appeal, as evidenced by the certificate of service attached thereto,

but has not submitted a reply.

The Commission's regulations provide that a complainant is entitled,

upon request, to a hearing before an EEOC administrative judge.

64 Fed. Reg. 37,644, 37,656-57 (1999) (to be codified at 29

C.F.R. ��1614.108, 1614.109). The uncontroverted evidence of record in

this case reflects that complainant timely requested, and was denied,

such a hearing. Accordingly, it is the decision of the Commission to

VACATE the final agency decision, and to REMAND the case for a hearing.

ORDER

The agency is ORDERED to take the following action:

Within ten (10) days of the date on which this decision becomes final, the

agency shall notify the appropriate EEOC District Office of complainant's

request for a hearing.

The agency shall submit a report of compliance, including evidence

that the above actions have been taken, to the Compliance Officer,

as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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:

April 24, 2000

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_________________________________ ________________________

Equal Employment Assistant Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.