01970277
05-11-2000
Star L. Pickett, Complainant, v. Janet Reno, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
Star L. Pickett v. Department of Justice
01970277
May 11, 2000
Star L. Pickett, )
Complainant, )
) Appeal No. 01970277
v. ) Agency No. DJ 187-7-160
Janet Reno, ) Hearing No. 170-96-8131X, 170-96-8169X
Attorney General, )
Department of Justice )
(U.S. Marshals Service), )
Agency. )
____________________________________)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of race (Black), reprisal (prior EEO activity), and age (52),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The appeal is
accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. � 1614.405). Complainant alleges that he was discriminated
against when he was constructively discharged from his position as a
Deputy United States Marshal in Camden, New Jersey. For the following
reasons, we REVERSE and REMAND the agency's final decision.
BACKGROUND
This is the second appeal to the Commission in this matter. In our
decision on the first appeal, Pickett v. Department of Justice, EEOC
Appeal No. 01933077 (December 13, 1993), we described the factual and
procedural background of the case to that point as follows:
On May 1, 1991, appellant contacted an EEO Counselor, alleging
discrimination based upon race (black), age (52) and reprisal
(previous EEO activity) when his supervisor refused to allow him to
resume performing a collateral duty assignment after he voluntarily
resigned from that assignment. On June 20, 1991, appellant was issued
a Notice of Final Interview and a Report of Counseling. On July 19,
1991, appellant filed a formal complaint of discrimination.
On November 1, 1991, appellant again contacted an EEO Counselor, alleging
discrimination of the bases of race (black), age (52) and reprisal
(previous EEO activity). Appellant indicated that he was continually
being harassed because of his prior EEO activity. On February 3, 1992,
appellant resigned from his position. On February 6, 1992, he was issued
a Notice of Final Interview and a Report of Counseling. On February
24, 1992, appellant filed a formal complaint of discrimination. The
complaints were investigated, and a Notice of Proposed Disposition was
issued on August 17, 1992, finding no discrimination. Appellant requested
a hearing before the EEOC Administrative Judge (AJ). On March 31, 1993,
the AJ remanded the case to the agency for the agency to dismiss the
complaints as moot.
The agency issued a final decision dated May 3, 1993, dismissing
appellant's complaints on the grounds that his allegations were now moot
due to his resignation. This appeal followed.
On appeal we held that the agency had erred in dismissing the complaints
as moot, finding that the complaints implicitly raised a claim of
constructive discharge, concerning which complainant had not received
EEO counseling. The matter was remanded to afford complainant "the
opportunity to seek EEO counseling on the issue of whether [complainant]
has been constructively discharged."
On remand, complainant sought EEO counseling on the issue of constructive
discharge and on June 23, 1994 he filed a further complaint alleging
that he was "forced to retire" from the agency "due to mental anguish,
harassment, reprisal and union affiliation." The agency accepted the
complaint and consolidated it for investigation with complainant's two
earlier complaints.
At the conclusion of the investigation complainant elected to exercise
his right to a hearing before an Administrative Judge (AJ). However,
the AJ to whom the case was assigned remanded the case to the agency,
apparently being of the view that the case was within the exclusive
jurisdiction of the Merit Systems Protection Board (MSPB).
Following the remand, on September 25, 1996, the agency issued a
final decision on the basis of the investigative record. The FAD
concluded that "[n]othing in the record demonstrates that complainant
was actually discriminated against or treated less favorably than other
[deputy marshals]." In October, 1996 complainant appealed the FAD to
this Commission and to the MSPB.<2>
On February 13, 1997, an MSPB administrative judge issued an initial
decision dismissing complainant's appeal on jurisdictional grounds.
On June 26, 1997 the MSPB denied complainant's petition for review of
the initial decision.
On October 7, 1997 counsel for the agency wrote to the EEOC AJ who had
been assigned complainant's case. The letter recited the procedural
history of complainant's case following the AJ's decision to remand to
the agency, detailing the unsuccessful appeal to the MSPB. The letter
continued as follows:
In July 1997, [complainant] filed an appeal with the United States
Court of Appeals for the Federal Circuit. In his appeal, [complainant]
indicated that he is seeking review only of the MSPB dismissal for lack
of jurisdiction.
On October 1, 1997, [Complainant] indicated that the Agency should notify
him, pursuant to 29 C.F.R. � 1614.302(b), of his right to elect between
a hearing before the EEOC and an immediate final decision on Agency
Case No. M94-6372.
Even though [complainant] has filed an appeal with the Federal Circuit,
his complaints may now be ripe for EEOC adjudication. Please advise the
parties on whether the above-referenced cases should now be adjudicated
by the EEOC. The Agency has no objection to having the case adjudicated
by the EEOC, although the Agency reserves the right to file a Motion
for Findings and Conclusions Without a Hearing. (emphasis supplied)
By letter dated December 30, 1997, the AJ responded to agency counsel's
letter, in pertinent part, as follows:
Since [complainant] filed a complaint in federal district court rather
than having the cases submitted to the Commission for hearing, the Equal
Employment Opportunity Commission would have no jurisdiction over the
cases, as federal court is superior to us. Therefore, we cannot hear the
cases and the agency should not resubmit them to us. (emphasis supplied)
So far as the record reflects, neither the AJ nor the agency has taken
any action with respect to complainant's complaint since the date of
the AJ's December 30, 1997 letter.
ANALYSIS AND FINDINGS
Where a "mixed case" appeal is filed with the MSPB and the MSPB
dismisses the appeal on jurisdictional grounds, EEOC Regulation 29
C.F.R. � 1614.302(b) provides that "the agency shall reisssue a notice
under � 1614.108(f) giving the [complainant] the right to elect between a
hearing before an administrative judge and an immediate final decision."
This is the procedure that should have been followed in this matter.
The AJ's decision that she had no jurisdiction because a case had been
filed in "federal district court" is based on a misapprehension of
the facts as represented in agency counsel's October 7, 1997 letter.
That letter states not that complainant was pursuing his case in federal
district court. Had that been the case, administrative processing of
the case might properly have been terminated. See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. ��
1614.107(a)(3)).<3> Rather, agency counsel's letter represented that
complainant had filed an appeal with the United States Court of Appeals
for the Federal Circuit,<4> which is not a United States District Court.
Accordingly � 1614.107(a)(3) has no application here. We conclude that
the AJ erred in finding that she was without jurisdiction to conduct a
hearing in this matter.
CONCLUSION
Therefore, after a careful review of the record and arguments and
evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final action and REMANDS the matter in accordance
with this decision and the ORDER below.
ORDER
The complaint is remanded to the Hearings Unit of the EEOC Philadelphia
District office for scheduling of a hearing in an expeditious manner.
The agency is directed to submit a copy of the complaint file to the
EEOC Hearings Unit within fifteen (15) calendar days of the date this
decision becomes final. 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 Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
May 11, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.
2The MSPB appeal was assigned docket number PH-0752-97-0048-I-1.
3 Section 1614.107(a)(3) provides for dismissal of a complainant that
"is the basis of a pending civil action in a United States District
Court in which the complainant is a party provided that at least 180
days have passed since the filing of the administrative complaint, or
that was the basis of a civil action decided by a United States District
Court in which the complainant was a party."
4We note for the record that upon inquiry of the clerk's office for the
United States Court of Appeals for the Federal Circuit on March 17, 2000
and of the clerk's office for the Merit Systems Protection Board on April
10, 2000, the Commission was informed that no appeal was pending in this
matter, nor indeed was there any indication that an appeal had been filed.