0120072402
08-28-2007
Jose R. Zavala, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Jose R. Zavala,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120072402
Agency No. 2003-0580-2004103952
DECISION
On April 11, 2007, complainant filed an appeal with this Commission from
the agency's decision dated December 4, 2006, which refused to reinstate
the processing of 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.
BACKGROUND
The background relevant to complainant's appeal is as follows.
In July 2003, complainant filed his first EEO complaint, Agency
No. 2003-0580-2003103262 (complaint #1), claiming discrimination on
the basis of his national origin (Hispanic, Mexican American) when
he was subjected to harassment, and denied a promotion and training.
After a final agency decision, complainant appealed to the Commission
in EEOC Appeal No. 01A44345, which affirmed the agency's finding of no
discrimination in a decision issued on October 5, 2004.
While processing continued with complainant's complaint #1, he initiated
EEO counseling again in August 2004. In a complaint designated Agency
No. 2003-0580-2004103952 (complaint #2), filed on September 29, 2004,
complainant alleged that he was subjected to discrimination, and to a
pattern of harassment, on the bases of national origin (Hispanic, Mexican
American), age (D.O.B. 03/19/43), and in reprisal for prior protected EEO
activity arising under Title VII when, among other examples: 1) he was
not given light duty in connection with an on-the-job injury in accordance
with his request and was instead sent home on sick leave; and 2) he did
not receive chiller plant operator training. In a letter dated March 1,
2005, the agency accepted complainant's complaint for investigation.
In the meantime, pursuant to his rights in connection with EEOC Appeal
No. 01A44345 (October 4, 2005), Agency No. 2003-0580-2003103262,
complainant filed a civil action in the Southern District of Texas on
January 4, 2005. Included in his complaint were the issues of both Agency
Nos. 2003-0580-2004103952 and 2003-0580-2003103262. Consequently, on
March 15, 2005, the agency issued a final agency decision (FAD #1), which
dismissed complainant's complaint #2 under 29 C.F.R. � 1614.107(a)(3),
as a complaint that is the basis of a pending civil action. As this
was true at the time in question, the complainant, through his attorney,
did not file an appeal with the Commission.
On November 4, 2005, the agency filed a motion with the District Court
which, in part, requested the dismissal of that portion of complainant's
civil action which was the basis of Agency No. 2003-0580-2004103952,
complaint #2, arguing that he had not exhausted his administrative
remedies. On March 2, 2006, the District Court granted that
portion of the agency's motion, and dismissed without prejudice
the part of complainant's civil action that was contained in Agency
No. 2003-0580-2004103952.
Beginning on March 29, 2006, the complainant's attorney repeatedly
contacted the agency to request reinstatement of the processing of
complainant's complaint #2. In letters dated March 29, 2006, April 14,
2006, June 2, 2006, September 13, 2006 and November 9, 2006, complainant's
attorney explained to the agency that complaint #2 was no longer the
subject of a civil action and that Commission case authority dictated
that processing should be resumed. The agency finally responded to
complainant in a letter dated December 4, 2006 (FAD #2), in which it
declined to reinstate processing, stating that as complainant did not
appeal FAD #1, issued in March 2005, he had exhausted his administrative
remedies. It further stated that as the District Court did not order the
agency to reinstate the complaint, it was under no obligation to do so.
Complainant contacted the Commission on April 11, 2007 regarding the
agency's refusal to reinstate processing. We docketed this appeal.
ANALYSIS AND FINDINGS
Initially, we note that the agency argues on appeal that the complainant's
appeal is untimely as it was not filed within 30 days of December 4,
2006, the issuance of FAD #2. We find that as FAD #2 did not contain the
proper language to indicate that it was a decision which may be appealed
to the Commission, the delay in complainant's filing is excusable.
A simple comparison of the language giving appeal rights in FAD #1 with
that the agency points to in FAD #2 shows that FAD #2 is inadequate to
give complainant notice that the December 4, 2006 letter was subject to
appeal to the Commission. Therefore, we accept complainant's appeal of
FAD #2 for our consideration.
The agency found in FAD #2 that as complainant did not appeal FAD
#1 at the time of its issuance, he had exhausted his administrative
remedies for complaint #2. Complainant points out that in District
Court, the agency took the exact opposite position when it asked the
District Court Judge to dismiss that portion of complainant's civil
action, encompassing the issues of complaint #2, without prejudice,
for failure to exhaust his administrative remedies. We find that
the agency cannot, as the complainant states it, "have it both ways."
We therefore order the reinstatement of the processing of complaint #2,
Agency No. 2003-0580-2004103952, from the point at which processing
ceased, the agency's March 1, 2005 acceptance letter.
ORDER
The agency is ordered to reinstate the above named complaint for
processing at the point at which processing ceased on March 1, 2005.
The agency is ordered to process the remanded claims, as accepted by
the agency in its March 1, 2005 letter, in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to the complainant that it has
received the remanded claims within thirty (30) calendar days of the date
this decision becomes final. The agency shall issue to complainant a
copy of the investigative file and also shall notify complainant of the
appropriate rights within one hundred fifty (150) calendar days of the
date this decision becomes final, unless the matter is otherwise resolved
prior to that time. If the complainant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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
8-28-07
__________________
Date
2
0120072402
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120072402