01a45363
11-08-2004
Evelyn Halik, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Evelyn Halik v. Department of Homeland Security
01A45363
November 8, 2004
.
Evelyn Halik,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A45363
Hearing No. 340-2003-0530X
Agency No. I-02-W118
The Commission finds that complainant filed her appeal prematurely.
The record indicates that after complainant filed a formal EEO complaint
and received her report of investigation, complainant exercised her
right to request a hearing before an EEOC Administrative Judge (AJ)
sometime during the early part of 2003. Subsequently, on June 12,
2003, complainant withdrew her request, opting instead for a final
agency decision without a hearing. The following day, on June 13, 2003,
the AJ complied with complainant's request for withdrawal issuing the
Notice Re Withdrawal of Hearing Request and Order to Agency to Issue
Final Decision (Order) in which he granted the withdrawal and ordered
the agency, pursuant to 29 C.F.R. � 1614.110(b), to take final action
on the matter within sixty days of receipt of the Order.
Over 500 days after the AJ's Order, the agency has yet to comply.
29 C.F.R. � 1614.110(b) states that �[w]hen an agency ... receives a
request for an immediate final decision ... [it] shall take final action
by issuing a final decision.� After waiting more than a year for the
final decision, complainant filed an appeal with the Commission on August
3, 2004, seeking, among other things, a renewed request for a hearing
before an AJ, and the imposition of sanctions upon the agency for its
�willful disregard and failure to comply with [the AJ's Order].� Brief
in Support of Appeal for Procedural Error, dated July 30, 2004, at 21-22.
EEOC Regulation 29 C.F.R. � 1614.402(a) indicates the proper time frame
for appealing to the Commission. It states that �[a]ppeals ... must be
filed within 30 days of receipt of the dismissal, final agency action
or decision.� 29 C.F.R. � 1614.402(a). The agency here, however, has
not yet taken final action. As such, according to the regulations,
the Commission cannot accept complainant's appeal until final agency
action has been taken.
As previously stated, the Commission finds that under 29 C.F.R. �
1614.402(a) complainant filed her appeal too soon, and as such the
Commission dismisses the appeal. While we decline to remand this
complaint to the Hearings Unit of the Los Angeles District Office, the
Commission finds that the agency is egregiously late in producing its
final agency decision in direct contravention with the AJ's instruction.
Therefore, the Agency is directed to comply with the Order below.
ORDER
The agency is hereby ordered to issue a final agency decision pursuant to
29 C.F.R. � 1614.110(b) within sixty (60) calendar days of this decision
becoming final.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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)
(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 (M0701)
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
__November 8, 2004_____________
Date