01A14589
11-19-2002
Arthur J. Ayala, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Arthur J. Ayala v. Department of Justice
01A14589
November 19, 2002
.
Arthur J. Ayala,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A14589
Agency No. B-00-2365
DISMISSAL OF APPEAL
INTRODUCTION
The record reveals that during the relevant time, complainant was
employed as a Special Agent, GS-1811-13, at the agency's San Francisco
Field Office, San Francisco, CA. Complainant sought EEO counseling and
subsequently filed a formal complaint on April 18, 2000, alleging that
he was discriminated against on the basis of national origin (Hispanic)
when he was outplaced from his position as a Criminal Investigator in
the Office of Inspector General (OIG) and reassigned to a position as
a Criminal Investigator with the Immigration and Naturalization Service
(INS). The Commission was advised by the agency that the complaint was
processed using an agency Pilot Program which consisted of a fact-finding
body reviewing the evidence and rendering a decision based on its review,
and therefore, there was no investigative file, hearing request, or
transcript.<1> For the following reasons, the Commission DISMISSES
the Appeal.
BACKGROUND
On May 8, 2001, the agency's Complaint Adjudication Office issued an
agency final decision. The decision advised complainant that if he
disagreed with the decision he had four options. One of the options
was that complainant may request that his complaint be adjudicated by
an EEOC Administrative Judge (AJ), and that the request should be made,
within 30 days of receiving the decision, directly to the EEOC at the
EEOC Washington Field Office, 1400 L Street, N.W., Suite 200, Washington,
D.C., 20005. By letter, dated June 6, 2001, complainant filed with the
Commission's Washington Field Office a request that his complaint be
adjudicated by an AJ. Complainant also filed a Notice of Appeal with
the EEOC Office of Federal Operations.
Meanwhile, complainant filed an appeal based on the same issues with the
Merit Systems Protection Board (MSPB) as case No. SF-3443-01-0439-I-1.
Complainant settled his MSPB appeal on August 29, 2001, and the MSPB
appeal was dismissed September 13, 2001. The Stipulation that was
entered into by complainant and the agency provided for complainant's
reinstatement to his former position, that his reinstatement shall
constitute full satisfaction of any and all claims arising from his
outplacement, and otherwise resolved the matters in controversy.
CONCLUSION
Therefore, after a careful review of the record, including the parties'
Stipulation and the MSPB Dismissal, we DISMISS the appeal.
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).
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 19, 2002
Date
1 The record does not contain any other
description of the program or the way in which it may alter complainant's
rights and the time frames contained in 29 C.F.R. Part 1614. See Jansson
v Department of Justice, EEOC Appeal No. 01A22553 (August 23, 2002).