01A14651_r
09-18-2002
Nathaniel Roper, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Nathaniel Roper v. Department of Transportation
01A14651
September 18, 2002
.
Nathaniel Roper,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A14651
Agency No. 3-00-3079
Hearing No. 150-A1-8233X
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dismissing his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. In his complaint, complainant
alleged that he was subjected to discrimination on the basis of race when:
On August 4, 1999 and on February 27, 2000, complainant was not selected
for the position of Welder Leader, WL-3703-10.
On March 7, 2001, the an EEOC Administrative Judge (AJ) issued a Notice On
Failure to Prosecute (hereinafter, referred to as Notice), directed to the
parties, that indicated the AJ's intent to dismiss the instant complaint
for complainant's failure to keep his address and telephone number of
record up to date. The AJ stated that an Acknowledgment Order, issued
January 19, 2001, and addressed to the complainant's address of record,
had been returned as undeliverable. By her order dated March 30, 2001,
the AJ dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(6),
on the grounds that complainant had failed to meet his obligation
of keeping his address of record current and he could not be located
in order to process the complaint. The AJ noted that she received
no response from either party following the issuance of her Notice.
By letter dated June 26, 2001, the agency stated that it failed to
timely issue a final order and that the AJ's decision therefore became
the final action of the agency.
On appeal, complainant contends that he notified both the agency and the
Commission's Miami District Office of his new (and current) address in
January 2001. Complainant submits evidence in the form of certified mail
receipts showing that items sent in early January 2001 to the agency and
to the Commission's Miami District Office had complainant's new address
on the Domestic Return Receipts. Significantly, we note that the record
contains a copy of the agency's letter dated December 20, 2000, sent
to complainant, acknowledging his request for an extension of time to
file a request for a hearing or agency decision. This December 20, 2000
letter was mailed to complainant's new address. Therefore, the agency
was informed, prior to the issuance of the Acknowledgment Order by the
AJ, of complainant's new address. We note that the agency's June 26,
2001 letter was sent to complainant's new address. The Commission finds
that the agency had notice of complainant's new address at the latest,
by December 20, 2000. Therefore, we find that dismissal of the complaint
pursuant to � 1614.107(a)(6) was improper.
Accordingly, we REVERSE the agency's final decision dismissing the
complaint and we REMAND the complaint to the agency for further processing
as directed by the Order herein.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC field
office to schedule a hearing regarding the complaint. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings
Unit within 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 the regulations set forth at
29 C.F.R. � 1614.109 and the agency shall issue a decision in accordance
with the regulation set forth at 29 C.F.R. � 1614.110.
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
September 18, 2002
__________________
Date