01A23362_r
06-26-2003
Samuel L. Mosby, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Samuel L. Mosby v. Department of Veterans Affairs
01A23362
June 26, 2003
.
Samuel L. Mosby,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23362
Agency Nos. 20012582, 20012620, 20012751, 20012880
Hearing Nos. 110-A1-8597X-PD, 110-A1-8598X-PD,
110-A1-8599X-PD, 110-A1-8600X-PD
DECISION
Complainant appealed to this Commission from the dismissal of his
complaints. In his complaints, complainant alleged numerous issues
of discrimination on the bases of race and reprisal for prior EEO
activity. By notice dated March 29, 2001, the agency consolidated
the complaints, and accepted the claims for investigation. At the
conclusion of the investigation, complainant requested a hearing before
an EEOC Administrative Judge (AJ), and designated an attorney as his
representative.
The attorney, by letter dated March 23, 2002, informed the AJ that
he no longer represented complainant. In this letter, the attorney
referenced an e-mail complainant sent to the attorney explaining that
complainant �did not want [the attorney] to represent [him] anymore on
these matters . . .�, and had �decided not to proceed any further� with
his �EEO cases.� The record does not include a copy of complainant's
e-mail to the attorney. Upon receipt of the attorney's letter, the AJ
issued a March 25, 2002 order to dismiss complainant's hearing request,
�pursuant to complainant's withdrawal of his request for a hearing.�
By letter dated March 26, 2002, complainant protested the AJ's order,
contending that his March 21, 2002 e-mail notified the attorney �what my
intentions w[ere] going to be, as far as, [sic] not needing representation
from him.� Further, he asserted that he had �decided not to withdraw
. . . any of the above charges . . . [or his] request for a hearing on
those cases.� The AJ responded on April 3, 2002, informing complainant
that he �dismissed [complainant's] case,� in the March 25, 2002 order.
He provided complainant with appeal rights, notifying complainant that he
may appeal to this Commission if the agency failed to take final action
within forty (40) calendar days. Complainant filed the present appeal
on May 14, 2002. On appeal, complainant argues that he should have had
an opportunity to present his case to the AJ.
The agency opposed complainant's appeal, arguing that it was premature
because complainant had not received a final decision on the merits.
Since the AJ's order only referred to the dismissal of complainant's
request for a hearing, the agency continued to process the complaint as
though complainant had requested a final decision without a hearing.
On September 23, 2002, the agency issued a final decision finding no
discrimination in any of his claims.
The Commission finds that complainant never withdrew his request for
a hearing. When complainant fired his attorney, the attorney was
no longer representing complainant. The attorney informed the AJ of
complainant's change in representation in his March 23, 2002 letter.
Even assuming that complainant expressed a wish to withdraw his
complaint to the attorney, the attorney's mention of this intention
has no binding effect on complainant's claims. In other words, the
attorney cannot affect the withdrawal of a complaint for which he no
longer serves as the representative. Further, the day after the AJ
issued his dismissal order, complainant expressed his intent only to
terminate his representative, not withdraw his complaint. Therefore,
the Commission finds that complainant never withdrew his request for a
hearing, and is entitled to have a hearing before an AJ.<1>
CONCLUSION
Accordingly, the agency's September 23, 2002 final decision is VACATED,
and the complaints are REMANDED for further processing as ordered herein.
ORDER
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall request that the EEOC's Atlanta District Office schedule
a hearing. The agency is directed to also submit a copy of the complaint
files to the Hearings Unit of the Atlanta District 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 request and complaint files have been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
shall issue a decision on the complaint in accordance with 29 C.F.R. �
1614.109 et seq., and the agency shall issue a final action in accordance
with 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
June 26, 2003
__________________
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
______________________________
1Our decision does not preclude the AJ from dismissing the complaint or
for issuing a decision without holding a hearing, if appropriate.