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.