01A43125_r
11-29-2004
Austin Curtis, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
Austin Curtis v. Department of Homeland Security
01A43125
November 29, 2004
.
Austin Curtis,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A43125
Agency No. HS-04-0283
Hearing No. 310-A2-5321X
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated February 6, 2004, pertaining to 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.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race and in reprisal for prior protected activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, complainant filed a formal complaint.<1>
(1) On June 22, 2000, the complainant was relieved of certain
responsibilities and learned that his original Position Description
(PD), which included supervisory duties had been changed to that
of non-supervisory duties, and he was denied the ability to lead and
assist the supply staff although his PD stated that he was the Lead
Supply Specialist;
(2) On June 26, 2000, the complainant unfairly received a warning
for alleged inappropriate conduct and a performance appraisal in which
he received Less Than Expected in two critical and three non-critical
performance elements.
(3) Complainant was unfairly required to submit unnecessary travel
vouchers for travel to and from the north and south campuses, although
he had stated to management officials that he had traveled with another
employee;
(4) Complainant was repeatedly called upon by management officials
during regular working hours to resolve staffing issues which unfairly
required him to work late hours using personal time in order to complete
his regular assignments. He was continually requested to follow his
�tour of duty�, while his request for direction/clarification of tour
of duty was continually denied;
(5) Management officials continually admonished, personally attacked,
and treated the complainant differently than similarly situated employees
regarding distributing mail messages, attending meetings and training
classes. His office was moved without his knowledge while he was on leave
and he was accused of taking sick leave without informing his supervisor.
(6) Complainant was continually subjected to a hostile work environment
and harassment because of his efforts in assisting two coworkers in
responding to an unfavorable performance evaluation;
(7) Complainant's request for a copy and explanation of operating
procedures were denied by management officials. He was also continually
ignored and denied assistance from a coworker assigned by his supervisor
to provide him with information regarding office operation and procedures.
His supervisor continually required that he request the assistance from
the coworker although she was made aware of the problem;
(8) On July 27 and 28, 2000, the Complainant was falsely accused of
sexual harassment by two female employees;
(9) Complainant suffered continual harassment and reprisal/retaliation
when management officials prevented him from performing certain aspects
of his position.
(10) On April 25, 2001, the complainant was falsely accused of
inappropriate use of the FEMA issued cell phone;
(11) Management singled the complainant out for retaliation and unfairly
scrutinized and sought errors and/or mistakes in the execution of his
duties following the commencement of his EEO investigation;
(12) Complainant was discriminated against on May 30, 2001 when
management unfairly removed him from his position at FEMA Texas-NPSC.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On January 27, 2004, before a hearing was
held, the AJ issued an Order of Dismissal. According to the AJ, during
a pre-hearing conference, complainant withdrew his hearing request and
stated that he wanted to proceed in Federal District Court. The AJ noted
that because more than 180 days had elapsed since the formal complaint
was filed, complainant could file a civil action in U.S. District Court.
On February 6, 2004, the agency issued a final decision that is
the subject of the instant appeal, implementing the AJ's decision.
According to the agency, complainant withdrew his request for a hearing
on January 26, 2004 and the AJ granted his request.
On appeal, complainant contends that he explained to the AJ that if the
agency is not willing to settle his case, he wanted a Notice of Right
to Sue to take the matter into federal court. Complainant requests
that the AJ amend her Order of Dismissal to state that because �more
than 180 have elapsed since the complaint was filed, and on January 26,
2004 the agency is not willing to settle the case . . . I am issuing
[complainant] the Notice of Right to Sue . . . .�
Based on a review of the record, while the Commission agrees that
complainant withdrew a request for a hearing before an AJ, it is not clear
that he withdrew his complaint. Complainant has, instead, manifested
an intent to file a civil action, but there is nothing in the record
indicating that he has yet done so. Accordingly, the agency's decision,
dismissing the complaint on the grounds of withdrawal was improper and
is hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within sixty (60) days of the date that this decision becomes final,
the agency is order to render a final decision on the merits of the
captioned complaint, in accordance with 29 C.F.R. � 1614.110(b).
A copy of the agency's final decision must be sent to the Compliance
Officer as referenced below.
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 29, 2004
__________________
Date
1 The record indicates that complainant
filed a formal complaint, dated October 12, 2000 and thereafter raised
an additional matter, regarding his termination, which the agency treated
as an amendment to the October 2000 complaint.