Samuel L. Mosby, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJun 26, 2003
01A23362_r (E.E.O.C. Jun. 26, 2003)

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.