Erick Carr, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a33679 (E.E.O.C. Nov. 24, 2004)

01a33679

11-24-2004

Erick Carr, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Erick Carr v. Department of the Treasury

01A33679

November 24, 2004

.

Erick Carr,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A33679

Agency No. 99-4045R

DECISION

Complainant filed a formal complaint on November 17, 1999, alleging that

the agency discriminated against him in violation of Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et

seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., on the bases of his race/color

(African-American), sex, disability, and in reprisal for prior protected

EEO activity. At the conclusion of the investigation, complainant

requested a hearing before an EEOC Administrative Judge (AJ). The record

reflects that complainant's attorney issued a "motion to dismiss" to

the AJ and agency counsel, dated April 30, 2003, which stated "comes

now complainant by and through the undersigned counsel and files this

Motion to Dismiss the above-captioned complainant [sic] with prejudice."

The record also reflects that by letter to the agency dated May 1,

2003, the AJ stated that complainant had withdrawn his request for

a hearing and his complaint. However, by letter dated May 8, 2003,

complainant contacted both the AJ and the agency stating that he did

not wish to withdraw his case and that there had been a misunderstanding

with his attorney. Additionally, on June 6, 2003, complainant contacted

this Commission in writing, stating that he was "appealing the enclosed

letter of dismissal." Complainant also stated that he and his attorney

"had a misunderstanding as to what direction [he] wanted to take" in

the case, and that he had not instructed his attorney to dismiss the case.

Here, we find that the evidence of record appears to support complainant's

contention that he did not intend to dismiss his request for a hearing

or his complaint. Given the extremely unusual circumstances surrounding

this case, we find that the dismissal of the complaint was improper,

and we remand the matter to the agency for processing in accordance with

this decision and the order below.

ORDER

The agency shall submit to the Hearings Unit of the St. Louis 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

November 24, 2004

__________________

Date