Thomas E. Chapman, Jr., Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01a00433 (E.E.O.C. Mar. 24, 2000)

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.