01a44884
11-10-2004
Anita G. Maker, Courtney A. Jacobs, Marjorie Alvarez Complainants, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Anita G. Maker, Courtney A. Jacobs and Marjorie Alvarez v. Department
of Homeland Security
01A44884; 01A45362; 01A44886
November 10, 2004
.
Anita G. Maker,
Courtney A. Jacobs,
Marjorie Alvarez
Complainants,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal Nos. 01A44884; 01A45362; 01A44886
Hearing Nos. 340-A1-3255X; 340-A1-3185X; 340-A1-3042X
Agency Nos. I-00-W035; I-00-W0843; I-00-W010; I-00-W082; I-00-W030
DECISION
A decision on this matter requires an understanding of the procedural
history of the case. After complainants filed formal EEO complaints and
received reports of investigation, complainants individually exercised
their right to request a hearing before an EEOC Administrative Judge
(AJ). On January 10, 2003, the AJ assigned to the matters proposed
to consolidate them because each complainant alleged discrimination
in the denial of promotions under vacancy announcement numbers MSP
II 99 LOS 431 (Supervisory Deportation and Detention Officer at the
San Pedro Processing Center) and MSP II 99 LOS 208 (Section Chief,
Detention and Deportation Branch). Subsequently, in February 2003,
complainants withdrew their requests for a hearing. Shortly thereafter,
on February 26, 2003, the AJ issued an Order of Dismissal and Remand for
Final Agency Decision (Order) in which the AJ granted the complainants'
request for withdrawal and remanded the complaints to the agency to
take final action consistent with 29 C.F.R. � 1614.110(b). The agency,
however, took no action. Instead of construing the AJ's Order for what
it was - a grant of complainants' withdrawal of a hearing request and
a remand to the agency for final action - the agency interpreted the
Order as one dismissing the complaints.
The agency argues that its interpretation and actions are valid under
section 29 C.F.R. � 1614.109(i). See Agency's Brief in Opposition
to Complainants' Request for a Hearing and Sanctions, dated Aug. 8,
2003 (Agency's Brief), at 2-3. Pursuant to that section, if an agency
does not issue a final order within forty days of receipt of the AJ's
decision in accordance with 29 C.F.R. � 1614.110, the AJ's decision
becomes the final action of the agency. See 29 C.F.R. � 1614.109(i).
Although there is no dispute as to the meaning of the regulation, the
agency erred in applying it to this matter because the AJ did not issue
a decision dismissing the complaints. Although admittedly the AJ used
the word �dismissal� in her Order, she merely granted the complainants'
request for a withdrawal of a hearing. See Order at 1 (�These matters
are ordered dismissed based on the requests to withdraw dated Feb. 25,
24 and 25, 2003, respectively.�). The AJ's Order was not a dismissal
of the complaints. On the contrary, the Order directed the agency to
take final action within sixty days of receipt of the Order. See id.
Upon insisting that a final agency decision be issued on their complaints,
complainants Marker and Alvarez received the Agency's Brief and appealed
to the Commission on July 15, 2004. Subsequently, complainant Jacobs
similarly appealed on August 3, 2004. The Commission finds that the
agency failed in its obligation to issue a timely final agency decision in
accordance with the AJ's directions. Contrary to the agency's argument
that the AJ issued a decision dismissing the complaints, and that it
had thereby accepted by default the AJ's decision after the forty day
time period lapsed, an analysis of the case file and the AJ's Order
reveals that no such decision had been issued. The AJ did not dismiss
the complaints. As such, the agency's decision as expressed in the
Agency's Brief is VACATED, and the agency is directed to comply with
the Order below.
ORDER
Within sixty (60) calendar days of this decision becoming final, the
agency is hereby ordered to consolidate the complaints and issue a final
agency decision pursuant to 29 C.F.R. � 1614.110(b).
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 10, 2004_____________
Date