01A22423
09-22-2003
Clarence R. Jordan, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Education Activity) Agency.
Clarence R. Jordan v. Department of Defense
01A22423
09-22-03
.
Clarence R. Jordan,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Education Activity)
Agency.
Appeal No. 01A22423
Agency No. PE-FY00-03
Hearing No. 370-A0-2512X
DECISION
Complainant initiated an appeal concerning 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. �
1614.405. For the following reasons, the Commission remands the complaint
to the agency for further action.
The record reveals that during the relevant time, complainant was
employed as an Elementary Teacher, TP-1701 at the agency's Shirley
Lanham Elementary School in Atsugi, Japan. Complainant sought EEO
counseling and, subsequently, filed a formal complaint on November 12,
1999, alleging that he was discriminated against on the bases of race
(African-American) and age (D.O.B. June 22, 1938) when, during the
1998-1999 school year, he was subjected to a hostile work environment,
which forced him to retire, effective April 19, 1999.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and informed of his right to request
a hearing before an EEOC Administrative Judge (AJ) or alternatively,
to receive a final decision by the agency. The AJ determined that the
case was a �mixed� case and was more properly under the jurisdiction
of the Merit Systems Protection Board (MSPB), as complainant had put
forth a claim of constructive discharge. The AJ issued a decision on
May 4, 2001, ordering the agency to process the case as either a mixed
case complaint or mixed case appeal. The agency issued a final agency
decision on August 10, 2001, with appeal rights to the MSPB, in which
it found that complainant had not been discriminated against.
Complainant initiated an appeal with the MSPB on September 16, 2001.
The MSPB issued a decision, based on the written record only, on
January 24, 2002, in which it ruled on whether the matter fell under
its jurisdiction. The MSPB AJ decided that complainant had not been
constructively discharged from the agency and that therefore, his
case was not properly in its jurisdiction. The MSPB AJ only addressed
complainant's allegations of discrimination �insofar as it relates to
the issue of the voluntariness of appellant's retirement, and not whether
the evidence would establish discrimination as an affirmative defense.�
After the MSPB decision became final 30 days later, complainant initiated
an appeal to the EEOC, although the MSPB decision did not issue appeal
rights to the EEOC.
On appeal, complainant argued the merits of his complaint and asked the
Commission to find that he had been discriminated against. The agency
did not respond to complainant's appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.302(b) states that �If a person files
a timely appeal with MSPB from the agency's processing of mixed case
complaint and the MSPB dismisses it for jurisdictional reasons, the
agency shall reissue a notice under � 1614.108(f) giving the individual
the right to elect between a hearing before an administrative judge
and an immediate final decision.� Additional guidance on processing a
complaint where the MSPB dismisses a mixed case appeal because it finds
it has no jurisdiction, where the case is not mixed, states that
�If the individual filed the appeal after the agency issued an agency
final decision on the mixed case complaint or after the agency failed
to issue a final decision on the mixed case complaint within 120 days,
the agency must provide the complainant with a thirty (30) day notice
of right to a hearing and decision from an EEOC Administrative Judge
or an immediate final decision by the agency pursuant to � 1614.108(f)
and thereafter proceed as in a non-mixed case.�
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 4-6 (November 9, 1999).
Complainant filed what was determined by the EEOC AJ to be a mixed
complaint because it was a claim of constructive discharge. The agency
properly issued a final agency decision with appeal rights to the MSPB.
When the MSPB AJ dismissed the matter for lack of jurisdiction, the
complaint became a "non-mixed" matter and should have been adjudicated
under 29 C.F.R. � 1614.109 et seq. Therefore, the case should have
gone back to the agency for processing. As complainant had requested
a hearing before an EEOC AJ, his complaint should be put back in the
process at that stage.
ORDER
The agency shall submit to the Hearings Unit of the EEOC's San Francisco
District Office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__09-22-03________________
Date