01a51853
04-07-2005
Debra A. Lindsey, Complainant, v. Michael Chertoff, Secretary, Department of Homeland Security, (Transportation Security Administration) Agency.
Debra A. Lindsey v. Department of Homeland Security
01A51853
04-07-05
.
Debra A. Lindsey,
Complainant,
v.
Michael Chertoff,
Secretary,
Department of Homeland Security,
(Transportation Security Administration)
Agency.
Appeal No. 01A51853
Agency No. TSAF-04-0394
DECISION
Upon review, the Commission finds that complainant's complaint
was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for
failure to state a claim. Complainant alleged that she was subjected
to discrimination on the basis of reprisal when:
(1) she was informed that she had not passed her re-certification test
for her position on November 8, 2003;
(2) she was asked to change her scheduled vacation leave, her plane
reservations and retest on November 15, 2003, under the threat of losing
her position;
(3) she was placed on administrative leave on November 24, 2003;
(4) she was escorted into an office in a fashion which she found
intimidating; and
(5) she received termination notices on November 26, 2003, and December
11, 2003, by regular and certified mail.
Complainant filed her formal complaint on February 4, 2004. On October
11, 2004, she requested a hearing before an EEOC Administrative Judge.
After complainant requested the hearing, the agency issued a final
decision dismissing her complaint on the grounds that she failed to state
a claim.<1> According to the agency, complainant failed to establish that
she had ever engaged in any protected EEO activity. On December 10, 2004,
the agency filed a motion to dismiss complainant's request for a hearing
with the Administrative Judge because of its dismissal of her complaint.
Subsequently, complainant filed an appeal with the Commission. On appeal,
the agency indicated that, on February 2, 2005, the Administrative Judge
issued an order directing that it produce the complaint file.
EEOC Regulation 29 C.F.R. � 1614.107 (a) provides that an agency may
dismiss a complaint prior to a request for a hearing. In the present
case, there is no dispute that complainant's request for a hearing
was filed before the agency issued its final decision dismissing her
complaint.<2> Accordingly, we will REVERSE the agency's final decision
and will REMAND this matter in accordance with the Order below.
ORDER
The agency, if it has not already done so, is directed to submit a copy of
the complaint file to the Hearings Unit of the EEOC Los Angeles District
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 (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
____04-07-05______________
Date
1The agency's final decision is undated.
In a November 10, 2004 letter to the Supervisory AJ of the Commission's
Los Angeles District Office, the agency indicated that the final decision
was signed and mailed on November 1, 2004.
2Under the Commission's regulations, a complainant has the right to
request a hearing, after 180 days have passed since the filing of the
original complaint. See EEO Management Directive for 29 C.F.R. Part
1614, 5-28.