01A05530
11-09-1999
Carl W. Boykin, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Carl W. Boykin v. U.S. Department of Health and Human Services
01A05530
.
Carl W. Boykin,
Complainant,
v.
Donna E. Shalala,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A05530
Agency No. ACF-012-00
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated July 26, 2000, dismissing his complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
accepts the appeal in accordance with 29 C.F.R. � 1614.405.
By letter dated November 29, 1999, the agency informed complainant
that it consolidated three of his pending complaints pursuant to the
Commission's new regulations, and that they were being forwarded to an
EEOC Administrative Judge (AJ) for a hearing. The agency additionally
informed complainant that he was entitled to amend his consolidated
complaint with like or related claims, and also that he could request
consolidation of certain claims in the pre-complaint stage with his
three consolidated complaints.
By letter dated December 10, 1999, complainant contacted the EEOC's
Washington Field Office, requesting amendment of his consolidated
complaints by adding three additional issues. Two of these issues
comprise the claims in the instant complaint, namely his non-selection
under vacancy announcement ACF-99-C-039 and the agency's purported
refusal to provide information under the Freedom of Information Act (FOIA)
regarding this non-selection. The record is then devoid of any indication
of the disposition of this request by either the AJ or the agency.
Next, the record shows that complainant contacted an EEO counselor on
February 24, 2000, and filed the instant complaint on May 10, 2000.
The agency then dismissed the complaint, finding that complainant had
failed to establish timely EEO contact regarding the non-selection
claim, and that the FOIA claim did not fall within the purview of the
Commission's regulations.
On appeal, in pertinent part, complainant argues that the dismissal was
improper because he had requested that his consolidated complaint pending
before the AJ be amended to include the claims in his instant complaint.
Complainant further argues that the agency was well aware of this,
and dismissed the instant complaint as an act of reprisal.
After careful review, we find that the agency improperly dismissed the
instant complaint. As noted above, the record confirms that complainant
requested that the AJ amend his pending complaint to add the claims
presented in the instant complaint. Because there appears to have been no
formal decision regarding this request, we find that the agency decision
was improperly issued and that the matter must be REMANDED back to the
agency further processing.
Accordingly, we VACATE the agency's decision, and REMAND the case back
to the agency for action consistent with the ORDER below.
ORDER
The agency is to transmit the entire complaint file, including both
of complainant's appeal statements and supporting documentation, as
well as a copy of this decision, to the AJ assigned to EEOC Hearing
No. 100-A0-7243X,<2> and request a determination on complainant's December
10, 1999 request to amend his consolidated complaints with the claims in
the instant complaint. The AJ shall process this request in accordance
with 29 C.F.R. � 1614.109.
The agency is directed to submit the above described copy of the complaint
file to the EEOC Hearings Unit at the Washington Field Office 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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__________________
Date
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:
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2As of the issuance date of this decision, this case is still pending
at the Washington Field Office.