01972122
03-10-1999
Donald E. Thompson, Appellant, v. Janet Reno, Attorney General, Department of Justice, (Federal Bureau of Prisons), Agency.
Donald E. Thompson v. Department of Justice
01972122
March 10, 1999
Donald E. Thompson, )
Appellant, )
)
v. ) Appeal No. 01972122
) Agency No. P-95-8711
Janet Reno, ) Hearing No. 320-96-8149X
Attorney General, )
Department of Justice, )
(Federal Bureau of Prisons), )
Agency. )
)
DECISION
Appellant timely appealed the final decision of the Department of Justice,
Federal Bureau of Prisons (agency), concerning his complaint alleging
that the agency discriminated against him in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e, et
seq.; and Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The appeal is accepted by the Commission in
accordance with the provisions of EEOC Order No. 960.001.
Appellant filed a formal complaint alleging that the agency discriminated
against him on the bases of race (Black) and disability (perceived
heart condition) when he was required to take a physical exam to assume
the position of Disturbance Control Team (DCT) Leader. Appellant also
alleged that the agency retaliated against him, because of his prior
EEO activity, when it lodged an investigation of appellant for allegedly
being inattentive to duty and failing to follow procedures. Following
the agency's investigation of his complaint, appellant requested a
hearing with an EEOC administrative judge (AJ). Prior to the hearing,
the agency submitted a motion for findings and conclusions without a
hearing, pursuant to 29 C.F.R. �1614.109(e). The agency's motion alleged
that appellant was not an "aggrieved employee" within the purview of the
Commission's regulations. Thereafter, by letter dated September 26, 1996,
the AJ remanded the case to the agency. Relying on Quinones v. Department
of Defense, EEOC Appeal No. 05920051 (1992), the administrative judge
concluded the following:
"when presented with the issue of whether or not the complainant is
aggrieved, the Administrative Judge must, instead of ruling on motion,
remand the matter to the agency. Accordingly, the matter is being
remanded for further processing in accordance with Quinones."
Upon remand of the matter, the agency elected to consider the case as a
"hearing case" and issued a final agency decision (FAD) dated December 6,
1996, on the merits of the case.
On appeal, appellant contends that he is an aggrieved employee within
the purview of EEO regulations; the AJ erred by refusing to rule on the
issue of whether appellant was an "aggrieved" employee and remanding the
case to the agency; and the agency erred on remand by electing to issue
a FAD on the merits of the case. Appellant further requests that the
Commission remands this case to the EEOC's Denver District Office for
a full hearing.
First, the Commission notes that the agency's Complaint Adjudication
Officer in its FAD clearly concedes that appellant's complaint states
a claim. We further add that we find that appellant states a viable
Title VII and Rehabilitation Act claim alleging that he was subjected
to disparate treatment when he was asked to take a fitness-for-duty
exam before resuming the duties of his newly appointed position as
DCT Leader. See 29 C.F.R. �1614.103. In the instant matter, we note
that the Warden (Responsible Official, RO) made it a condition of
appellant's employment as DCT leader to take a fitness-for-duty exam.
The Commission's federal sector case precedent has long defined an
"aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No 05931049 (April 21, 1994). Therefore, we affirm the agency's FAD in
part which found that appellant is an aggrieved individual within the
meaning of the Commission's regulations.
At this juncture, we find it irrelevant to determine whether or not
the AJ properly remanded appellant's complaint to the agency for a
decision on the "failure to state a claim" issue. A more relevant
issue is whether the agency appropriately proceeded to issue a FAD on
the merits of appellant's complaint. After remand, the agency had an
obligation to issue a decision on the procedural issue of "failure to
state a claim." In light of the agency's subsequent retraction of this
argument, we find that the agency should have remanded the case back
to the AJ for a hearing on the merits of the complaint. The agency
contends in its FAD that it had no authority to remand the instant
complaint back to the AJ, however, we disagree. There is no indication
in the record that appellant withdrew his request for a hearing once
the decision was remanded. Therefore, pursuant to 29 C.F.R. �1614.109,
the agency had a duty to comply with appellant's request for a hearing.
The hearing process is intended to be an extension of the investigative
process, designed to "ensure that the parties have a fair and reasonable
opportunity to explain and supplement the record and to examine and
cross-examine witnesses." See the Commission's Management Directive
(MD-110), Chapter 6, page 6-1; see also 29 C.F.R. �1614.109(b) and (c).
"Truncation of the hearing process, while material facts are still in
dispute and the credibility of witnesses are still ripe for challenge,
improperly deprives appellant of a full and fair investigation of his
claims." Mi S. Bang v. U.S.P.S., EEOC Appeal No. 01961575 (March 26,
1998). See also Peavley v. U.S.P.S., EEOC Request No. 05950628 (October
31, 1996). Based on our review of the record, we find that there are
material facts in dispute in this complaint. Therefore, the agency
is ordered to remand the matter for hearing. Accordingly, it is the
decision of the Equal Employment Opportunity Commission to AFFIRM part
of the FAD finding that appellant's complaint states a claim and VACATE
the FAD finding no discrimination. In accordance with this decision,
the agency is order to comply with the order below.
ORDER
Within 30 days of receipt of this decision, the agency shall
remand the complaint and the entire investigative record to the EEOC's
Denver District Office for a full hearing. Also within 15 days of
receipt of receipt of this decision, the agency shall give appellant
appropriate notice, concerning the remanding of his complaint, complete
with appropriate rights.
2. The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision."
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
March 10, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations