0120083776
02-19-2009
Scott McGinn, Complainant, v. Ray LaHood, Secretary, Department of Transportation, Agency.
Scott McGinn,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120083776
Agency No. DOT-2007-21060-FAA03
Hearing No. 410-2008-00148X
DECISION
On September 3, 2008, complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from an EEOC
Administrative Judge's (AJ) decision order dated July 30, 2008, dismissing
his request for a hearing on his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. and
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. The AJ's decision advised complainant that he had a right to
file an appeal any time after the agency's 40 day deadline elapsed for
issuing a final order. 29 C.F.R. � 1614.110(a). While complainant's
appeal was prematurely filed, it was perfected while pending on appeal
because the record does not show the agency ever issued a final order
after its receipt of the AJ's decision and hearing record.
Complainant filed an EEO complaint, and the agency notified him that
the accepted claim was whether he was discriminated against based on
reprisal for prior EEO activity when his supervisor changed his time
and attendance report to reflect absence without official leave (AWOL)
on December 19, 2006, because he was involved in an EEOC pre-hearing
conference and did not attend work. The letter advised complainant to
contact the agency within five days of his receipt of the letter if he
disagreed with the accepted claim.
Following an investigation on the accepted claim, complainant requested
a hearing. The AJ sent the parties an acknowledgment and order on
February 27, 2008, advising complainant that to amend his complaint,
he must submit a motion as early as possible to the AJ identifying the
claim, the dates it occurred, and why it was like and related to the
original complaint. The order advised that the AJ would rule on the
motion, and that motions to amend filed late in the process may be denied.
It advised that if within 30 days of his receipt of the order complainant
did not oppose in writing a prior dismissal of a claim by the agency
under 29 C.F.R. � 1614.107(a), his opportunity to have the AJ review
the dismissal would be waived.
On May 20, 2008, the AJ ordered the scheduling of the pre-hearing
conference for July 2, 2008, and the hearing for July 8, 2008. At the
pre-hearing conference complainant, who has been represented by counsel
throughout the process, made an oral motion to amend his complaint to
allege that after his complaint there was ongoing reprisal, including
two non-promotions. The AJ denied the oral motion at the pre-hearing
conference because complainant did not previously attempt to amend his
complaint and first did so just days before the scheduled hearing.
Complainant at the pre-hearing conference then withdrew his hearing
request and stated he would ask for a final agency decision (FAD).
The next day, complainant filed a motion demanding that the AJ go forward
with the hearing on July 8, 2008. He argued that his complaint was too
narrowly defined, and included ongoing reprisal from December 19, 2006
onward. The motion suggested that the hearing should include the issue
of ongoing reprisals. In its July 7, 2008, opposition to the motion,
the agency responded that in reliance on complainant's representation
at the pre-hearing conference, it released its witnesses.
On July 9, 2008, the AJ issued an order denying complainant's motion
to amend his complaint and to show cause why his request for a hearing
should be granted after he waived his right to a hearing. The order
denied the request to amend the complaint for the reasons stated above,
along with additional reasons. Among them was that the acknowledgment and
order explained to complainant how to seek amendment of his complaint at
the hearing stage and object to the agency's narrowing of the scope of
his complaint, but complainant waited until days before the scheduled
hearing to do so. In response to the show cause order, complainant
acknowledged saying at the pre-hearing conference that he would not
proceed to a hearing if the only the issue accepted by the agency was
going to be heard, and indicated a hearing should have been held including
the claim of ongoing reprisal.
On July 30, 2008, the AJ issued the order dismissing complainant's
hearing request, which complainant appeals. The order reasoned that
complainant voluntarily, knowingly and willfully withdrew his hearing
request on July 2, 2008, and failed to give good cause for further
action by the AJ. It reiterated that complainant never attempted to
amend his accepted complaint until six days before the scheduled hearing,
and he was not and is not willing to go forward with the hearing process
without a material expansion of the nature and scope of his complaint.
The order dismissed complainant's request for a hearing, and ordered
the agency to issue a FAD under 29 C.F.R. � 1614.110.
On appeal, complainant argues that his complaint should be remanded for a
hearing and include the issue of ongoing reprisal. We find that the AJ
acted well within his discretion to limit the claim to be heard to the one
accepted and investigated by the agency since complainant did not attempt
to amend the accepted claim until days before the scheduled hearing,
and he received the acknowledgment and order long before. Further,
since complainant orally withdrew his hearing request and refused to go
forward with a hearing unless the claim of ongoing reprisal was included,
he waived his right to a hearing.
The wording of the AJ's order of dismissal of the hearing request,
however, appears to have created some confusion. It ordered the
agency to issue a "final agency decision pursuant to the provisions of
29 C.F.R. � 1614.110," and contained a notice to parties advising that
the agency must issue a final order notifying the complainant whether
or not it would fully implement the AJ's decision, and contained time
lines consistent with this. In response, the agency did nothing,
as a failure to act effectively results in implementation of the AJ's
decision. 29 C.F.R. � 1614.109(i). A close review of the AJ's order,
however, reveals the intention was for the agency to issue a final agency
decision on the merits of complainant's accepted claim. The order merely
dismissed the hearing request, and contained no sanction fully dismissing
the complaint. In fact, it chided complainant for previously expressing
the belief that waiving his right to a hearing would automatically result
in a dismissal of his complaint.
The AJ's orders of dismissal of the hearing request and limiting the
complaint to the issue accepted by the agency is affirmed. The agency
shall comply with the order below.
ORDER
The agency is ordered to issue a FAD on the merits of complainant's claim
that he was discriminated against based on reprisal for prior EEO activity
when his supervisor changed his time and attendance report to reflect
absence without official leave (AWOL) on December 19, 2006, because he
was involved in an EEOC pre-hearing conference and did not attend work,
in accordance with 29 C.F.R. � 1614.110(b). The agency shall issue the
FAD within 60 calendar days after this decision becomes final.
A copy of the FAD 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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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 19, 2009
__________________
Date
2
0120083776
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083776