0120140500
02-13-2015
Complainant v. John Kerry, Secretary, Department of State, Agency.
Complainant
v.
John Kerry,
Secretary,
Department of State,
Agency.
Appeal No. 0120140500
Hearing No. 570-2014-00030X
Agency No. DOS-F-058-13
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated October 21, 2013, dismissing 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 pursuant to � 1614.405(a). Upon review, we VACATE and REMAND the Agency's final decision.
ISSUE PRESENTED
The issue presented before the Commission is whether it was appropriate for the Agency to have issued a final decision regarding the underlying complaint.
BACKGROUND
Complainant applied for the position of Legal Assistant Resident Legal Advisor (FSN-11/FP-4) in the Office of Overseas Prosecutorial Development in the United States Embassy in Mexico City, Mexico in early 2010.1 In March 2010, Complainant received a conditional offer for the position pending necessary medical and security clearances. On April 22, 2010, Complainant was notified that his security clearance had been denied; therefore, the Agency rescinded its conditional offer.
On October 17, 2012, Complainant contacted an EEO Counselor alleging discrimination on the bases of nation origin (Mexican-American). When the issue was not resolved during the counseling stage, Complainant filed a formal EEO complaint on the matter on January 18, 2013. The Agency accepted the complaint for investigation, and at the conclusion thereof, informed Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ), or in the alternative, a final decision from the Agency based on the record.
Complainant requested a hearing.2 Thereafter, his claim was forwarded to the appropriate EEOC District Office and assigned to an AJ. On October 21, 2013, the Agency issued a final decision in which it found Complainant had not proved discrimination as alleged. Thereafter, Complainant filed this appeal.
CONTENTIONS ON APPEAL
Complainant's contentions on appeal, in relevant part, are an essential part of his respective case-in-chief, and are therefore inherently addressed in the "Analysis and Findings" section below. We therefore decline to repeat those contentions here and will not specifically address them in this decision. The Agency did not submit contentions on appeal.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
Documentation in the record indicates that the AJ did not dismiss Complainant's claim until January 22, 2014, after she discovered the Agency had issued a final decision on October 21, 2013, and the complaint was pending on appeal before the Commission. After a review of the record, we find that the Agency erred when it acted on its own accord and issued a final decision after Complainant requested a hearing. In accordance with our regulations, once Complainant requested a hearing, the AJ had full control over adjudication of the complaint.
If the Agency believed that the hearing request was untimely, it should have submitted to the AJ a Motion to Dismiss Due to an Untimely Hearing Request, and a determination as to timeliness should have only been issued by the AJ. 3 See Lindsey v. Dep't of Homeland Security, EEOC Appeal No. 01A51853 (Apr. 7, 2005) (stating that the Agency violated the Commission's regulations where Complainant's request for a hearing was filed before the Agency issued its final decision dismissing the complaint, and as a result the Commission reversed the Agency's final decision and remanded the matter for a hearing).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we hereby VACATE the Agency's final decision and REMAND this matter for further processing. The Agency is ORDERED to take action in accordance with this decision and Order of the Commission, below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC Washington Field 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
February 13, 2015
Date
1 The same job was advertised in May 2010, October 2012, and January 2013. Complainant applied for each vacancy and each time was informed that another candidate had been selected.
2 We note that the Agency issued its notice of right to request a hearing on July 10, 2013, which we will presume the Complainant received by July 15, 2013. Due to (1) the Agency's failure to provide the Commission with the report of investigation, hearings record, and arguments on appeal, (2) the AJ's dismissal without prejudice stating that "Complainant may re-file a hearing request in the event that the [Commission] . . . determines that this EEO complaint should be adjudicated through the EEOC hearings process," and (3) Complainant's arguments on appeal with respect to timeliness and his attempts to amend his complaint to include like or related incidents of discrimination, we presume that Complainant timely preserved his right to a hearing. It is noted that the AJ's decision stated that Complainant filed his hearing request in August 2013, the month following the Agency's investigation of this matter. See AJ January 22, 2014 Decision.
3 In so doing, we note that the AJ's decision did not address the timeliness of Complainant's hearing request, nor did the Agency do so on appeal.
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0120140500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120140500