01A42388
07-09-2004
Aprichart Lee, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Aprichart Lee v. Department of Justice
01A42388
July 9, 2004
.
Aprichart Lee,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Federal Bureau of Prisons),
Agency.
Appeal No. 01A42388
Agency No. P-2002-0101
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated February 10, 2004, regarding 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his formal EEO complaint, filed on
December 5, 2001, complainant alleged that he was discriminated against on
the bases of race (Asian), national origin (Thai), and disability when:
(1) on September 14, 2001, he was placed in �home duty� status; and
(2) on February 13, 2002, he was notified that his termination would be
effective February 14, 2002.
On June 5, 2002, after 180 days from filing his formal EEO complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ),
pursuant to 29 C.F.R. � 1614.108(g). On November 1, 2002, it appears from
the record that the agency sent a copy of the Report of Investigation
(ROI) to the Commission's Los Angeles District Office (LADO), but it
is not clear whether an AJ was assigned to the case.<1> It is also
not clear whether the agency sent a copy of the ROI to complainant.
Complainant claims that he did not receive a copy of the ROI until �on
or about February or March 2003.�
On January 13, 2003, a Supervisory AJ in the LADO issued an Order
which stated that �on November 8, 2002, complainant submitted a
�Notice of Withdrawal from Hearing and Request for Final Agency
Decision.� The Supervisory AJ did not provide any explanation for why
complainant submitted the Notice, and the record does not contain a
copy of it. Based on complainant's submission on appeal, we conclude
that complainant took this action in November 2002 because he believed
that the investigation was not completed. The Supervisory AJ ordered the
agency to issue a final decision within 60 days of the date of his Order.
The record reveals that the agency did not comply with the AJ's Order
and did not issue a final decision until February 10, 2004.
Upon review of the record, we cannot ascertain whether, in November 2002,
complainant would have withdrawn his hearing request had he received a
copy of the ROI. We are able to conclude that complainant made a good
faith effort on several occasions in 2003 to determine the status of
his case and to renew his request for a hearing and that his efforts
were not addressed by either the agency or the LADO. We also note that
the agency's final decision makes no reference to whether complainant
requested a hearing, failed to respond to the notice it is required
to provide pursuant to 29 C.F.R. � 1614.108(f), or requested a final
agency decision. Further, the final decision does not explain the
agency's failure to abide by the AJ's Order.
On March 2, 2004, complainant filed the instant appeal arguing,
among other things, that the agency and the AJ ignored his requests
for assistance. The agency makes no arguments in opposition to
complainant's appeal. Our review of the record reveals that there are
genuine credibility disputes at issue in this complaint which would be
best resolved through the hearing process. Therefore, we VACATE the
agency's final decision and REMAND this complaint to the LADO for the
expeditious scheduling of a hearing.
ORDER
The agency is directed to submit a copy of the complaint file, along
with a copy of this decision, to the Hearings Unit of the Commission's
Los Angeles 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 complaint file has 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 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
July 9, 2004
__________________
Date
1 The Commission notes that once a hearing
has been requested, the AJ is expected to supervise the completion of
the agency's investigation when the investigation is not yet complete.
See EEOC Management Directive 110, November 9, 1999 (EEO MD-110) at
Chapter 7, Section III, Part B.