07A20011
09-03-2003
Christopher DeSantis, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.
Christopher DeSantis v. Department of Homeland Security
07A20011
September 3, 2003
.
Christopher DeSantis,
Complainant,
v.
Tom Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 07A20011
Agency No. TD 99-2280
Hearing No. 150-A0-8122X
DECISION
This appeal was filed by the United States Department of Treasury in
October 2001. The complaint, giving rise to this appeal, was filed
by Christopher DeSantis, hereinafter �complainant,� against the
Customs Service, formerly a component of the Department of Treasury.
The Customs Service is now a component of the Department of Homeland
Security, hereinafter �the agency.�
At all times relevant to the complaint giving rise to this appeal,
complainant, a GS-11 Customs Inspector, was occupying a GS-12 position
as an Instructor at the agency's Federal Law Enforcement Training
Center in Glynco, Georgia.<1> The agency characterized the position
as a temporary detail, not to exceed three years and notified all
applicants for the detail, through the vacancy announcement, that at
any time during the duration of the detail, the incumbent could be
returned to his/her original or a similar position, at his/her former
grade. Afer serving for approximately eleven months in this position,
complainant was �terminated� from the detail and �downgraded� to the
GS-11 Customs Inspector position he previously occupied. Consequently,
complainant filed a formal EEO complaint on April 28, 1999, alleging that
the agency's actions violated Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge.
On February 20, 2001, an Administrative Judge at the Commission's Atlanta
District Office issued an Order of Dismissal directing the agency to take
action consistent with 29 C.F.R � 1614.302 and 5 C.F.R. � 1201.154. The
Administrative Judge reasoned that the �EEOC does not have jurisdiction
over the termination issue because it is inextricably intertwined with
the downgrade issue which is within MSPB [sic] jurisdiction.� The
Administrative Judge did not explain her rationale. At the conclusion
of the Order of Dismissal, the Administrative Judge provided Notice
concerning both parties' appeal rights to the Commission.
On September 14, 2001, the Commission received a brief from the agency
appealing the Order of Dismissal on the grounds that the Merits System
Protection Board did not have jurisdiction over the actions giving
rise to this complaint because complainant was removed from his detail
pursuant to a Memorandum of Understanding Governing the Assignment of
Detailed Instructors Between the United States Customs Service and the
Federal Law Enforcement Training Center and returned to his former grade
and relocated to his former post of duty. The agency issued a final
order and an appeal to the Commission on October 10, 2001 refusing to
implement the Administrative Judge's decision.
Upon review, we find that the Administrative Judge incorrectly termed her
action a dismissal when it was actually a denial of complainant's hearing
request. In reaching this conclusion, we note that the Administrative
Judge specifically ordered the agency to issue a final decision on
the complaint in accordance with the mixed case complaint processing
regulations at 29 C.F.R. � 1614.302. We therefore conclude that the
Administrative Judge did not contemplate that the agency would dismiss
the complaint within the meaning of 29 C.F.R. � 1614.107 but would accept
the remanded complaint for further processing, essentially accepting
the Administrative Judge's denial of complainant's hearing request.
Because neither party has the right to appeal an Administrative Judge's
denial of a hearing request until after an agency has taken final action,
the Commission does not have jurisdiction over the instant appeal.
See 29 C.F.R. � 1614.401. Moreover, the appeal is untimely. See 29
C.F.R. � 1614.402. However, in the interests of judicial economy, the
Commission: (1) assumes jurisdiction over this appeal; (2) tolls the
time limits for filing; and (3) addresses whether it has jurisdiction
to conduct a hearing or whether the agency should process this complaint
in accordance with the mixed case complaint processing regulations.
We find that �an action that terminates a temporary or term promotion and
returns the employee to the position from which temporarily promoted,
or to a different position of equivalent grade and pay, if the agency
informed the employee that it was to be of limited duration� is
not a covered action within the meaning of 5 C.F.R. � 1201.3(a)(2).
See 5 C.F.R. � 752.401(b)(12). Based upon the notice provided in the
vacancy announcement and our review of the above referenced Memorandum
of Understanding, we find that the actions giving rise to this complaint
are not subject to the Commission's mixed case complaint processing
regulations. Accordingly, the Commission remands this case to the
Hearings Unit of the Atlanta District Office for expeditious processing
pursuant to 29 C.F.R. � 1614.109. The agency is directed to take action
consistent with the Order below.
ORDER
The agency shall submit to the Hearings Unit of the Atlanta District
Office a copy of the complaint file to the EEOC Hearings Unit 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:
September 3, 2003
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
1 The Federal Law Enforcement Training Center, previously a component
of the Department of Treasury, is also now a component of the Department
of Homeland Security.