0520120078 Searles v DHS FEMA
04-05-2012
Timothy L. Searles, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.
Timothy L. Searles,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.
Request No. 0520120078
Appeal No. 0120100901
Hearing No. 570-2007-00881X
Agency No. HS06FEMA007222
GRANT
The Agency timely requested reconsideration of the decision in Timothy L. Searles v. Department of Homeland Security, EEOC Appeal No. 0120100901 (September 30, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
After reconsidering the previous decision and the entire record, the Commission finds that the request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to grant the request.
BACKGROUND
While the underlying complaint was pending a hearing before an EEOC Administrative Judge (AJ), the AJ dismissed the complaint after concluding that the complaint included a termination claim, and therefore was a "mixed case" that included claims that were appealable to the Merit Systems Protection Board (MSPB). The AJ returned the complaint to the Agency for further processing, and instructed the Agency to issue a final decision with appeal rights to the MSPB.
The Agency subsequently issued a final decision finding that Complainant failed to establish that discrimination existed, and provided him with appeal rights to the EEOC's Office of Federal Operations. The final decision did not address the AJ's decision that this was a mixed case complaint. Complainant appealed the Agency's finding of no discrimination to the Commission.
On appeal, we found that the underlying complaint was a mixed case complaint, and the Agency's final decision improperly provided Complainant with appeal rights to the Commission rather than the right to have his complaint heard before the MSPB. We vacated the Agency's final decision and remanded the matter to the Agency to reissue the final decision with the right to appeal the matter to the MSPB. We note that the Agency did not provide a brief on appeal.
On request for reconsideration, the Agency contends that the Commission's previous decision was based on a clearly erroneous interpretation of the law. Specifically, the Agency asserts that the underlying complaint is not a mixed case complaint because Complainant is a temporary employee appointed under the Stafford Act, and therefore the MSPB does not have jurisdiction over the matter.
Complainant did not submit any contentions in response to the request for reconsideration.
ANALYSIS
As we noted in our previous decision, a mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. 29 C.F.R. � 1614.302(a)(1). Only an individual who meets Title 5's definition of a covered "employee" may appeal adverse actions to the MSPB. 5 U.S.C. � 7701(a). An individual is considered a covered employee if, amongst other criteria, they are a permanent employee. 5 U.S.C. � 7511(a). Here, Complainant does not qualify as a "covered employee" under Title 5 because he was not a permanent employee. Complainant was hired by the Agency as a temporary Disaster Assistance Employee (DAE) through the Stafford Act, which allows the Agency to hire temporary employees to work on specific disasters and emergencies. 42 U.S.C. � 5121 et seq.
Further, MSPB regulations state that employees whose positions have been excluded from the appointing provisions of Title 5 by separate statutory authority are excluded from coverage by the MSPB. 5 C.F.R. � 752.401(d)(12); Fishbein v. Dep't of Health and Human Services, 102 M.S.P.R. 4 (April 21, 2006) (An appellant lacks the right to bring an adverse action appeal to the MSPB concerning the termination of his employment where Congress' plain language stated that the position is not subject to the appointing provisions of Title 5), citing Chavez v. Dep't of Veterans Affairs, 65 M.S.P.R. 590 (Dec. 13, 1994) (the Board lacks jurisdiction over a removal appeal where the appellant's position had been excluded from the appointing provisions of Title 5 by separate statutory authority). Here, the Stafford Act specifically says that the Agency is authorized to appoint temporary personnel as necessary, "without regard to the provisions of Title 5 regarding appointments in competitive service." 42 U.S.C. � 5149(b)(1). Therefore, Complainant is precluded from appealing to the MSPB.
Since this complaint cannot be appealed to the MSPB, it is not a mixed case complaint. We find that the AJ erred when he concluded that this was a mixed case complaint, terminated the hearing process, and returned the complaint to the Agency to be processed as a mixed case complaint with appeal rights to the MSPB. Additionally, our previous decision erred when we remanded the matter to the Agency to reissue the final decision with the right to appeal the matter to the MSPB. This complaint will be remanded to the AJ to continue processing the hearing at the point processing ceased.
CONCLUSION
After reconsidering the previous decision and the entire record, the Commission finds that Agency's request meets the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120100901 is reversed. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. The Agency shall comply with the Order as set forth below.
ORDER
This complaint is remanded to the Hearings Unit of the EEOC Washington Field Office for scheduling of a hearing in an expeditious manner. The Agency shall submit to the Hearings Unit of the EEOC Washington Field Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is also directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decisions 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 claims in accordance with 29 C.F.R. � 1614.109.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0610)
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.
FOR THE COMMISSION:
______________________________
Bernadette B. Wilson
Acting Executive Officer
Executive Secretariat
April 5, 2012
__________________
Date
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0520120078
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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0520120078