01a00433
03-24-2000
Thomas E. Chapman, Jr., Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
Thomas E. Chapman, Jr., )
Complainant, )
)
v. ) Appeal Nos. 01A00433
) 01996413
Bruce Babbitt, ) Agency Nos. 96-041 et al.<1>
Secretary, )
Department of the Interior, )
Agency. )
)
DECISION
The complainant timely filed appeals with this Commission from final
decisions, dated July 15, 1999, and September 3, 1999, which the agency
issued pursuant to 29 C.F.R. �1614.107 and �1614.302.<2> The Commission
accepts the complainant's appeals pursuant to 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405).
The July 15, 1999 agency decision dismissed three claims raised by the
complainant's consolidated complaints, two for stating claims that were
resolved by a June 1995 settlement agreement, and one for failure to
state a claim. The decision informed the complainant of his right to
appeal the procedural dismissals to the Commission. The decision found
that the complainant failed to prove discrimination based on his race,
sex, and/or retaliation for prior EEO activity, regarding the remaining
claims. The decision notified the complainant of his right to file
an appeal with the Merit System Protection Board (MSPB) regarding the
�mixed case� claims.
The complainant filed appeals with the EEOC and the MSPB in accordance
with the instructions of the agency's decision.
By Order of August 27, 1999, the MSPB Administrative Judge found that
only the complainant's constructive discharge claim was reviewable by the
MSPB, and remanded the remaining claims to the agency for processing.
The agency then issued the September 3, 1999 decision which informed
the complainant that the remanded claims were appealable to the
Commission. The complainant again appealed.
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.403(e)) requires agencies to submit the complaint file to the
Commission's Office of Federal Operations (OFO) within 30 days of
the initial notification that the complainant has filed an appeal.
The agency has not done so in these appeals. Therefore, the Commission
finds that the dismissals of three of the complainant's claims on
procedural grounds are not supported by the record. The Commission
also finds that the agency wrongly considered the merits of one claim
when dismissing it for failure to state a claim. For these reasons, the
Commission REVERSES the agency's dismissal of three claims on procedural
grounds. The Commission also finds that all three dismissed claims must,
at a minimum, be considered as part of the complainant's hostile work
environment claim on REMAND.
The Commission also finds that the agency erred when it informed the
complainant that he should appeal the remaining claims to the Commission
following the MSPB's remand Order. The MSPB found that the remaining
claims were not properly deemed to be mixed-case claims because they were
not claims that could be appealed to the MSPB. Therefore, the Commission's
regulations governing non-mixed case claims became applicable and the
complainant has the right to a hearing before an Administrative Judge
employed by the Commission which he previously requested. Accordingly,
the Commission VACATES the agency's findings of no discrimination and
REMANDS the claims for hearing.
ORDER
Within ten (10) calendar days of the date this decision becomes final,
the agency shall forward copies of the five complainant files and a copy
of this Decision and Order to the appropriate EEOC Office with a request
that the matter be assigned to an Administrative Judge for hearing on
an expedited basis.
The agency shall send copies of the agency's request letter to the
complainant, the complainant's representative, and 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 (M1199)
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). 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:
March 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 of mailing. I certify that the
decision was mailed to the complainant, the complainant's representative,
and the agency on:
DATE Equal Employment Assistant1This appeal involves five
complainants which the agency consolidated for decision: agency
numbers LLM 96-046, LLM 97-048, LLM 97-065, LLM 98-012, and LLM
98-038.
2On 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.