01A13221
08-01-2002
Lisa Cox, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Lisa Cox v. Department of Agriculture
01A13221
August 1, 2002
.
Lisa Cox,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A13221
Agency No. 99-0718
DECISION
On May 20, 1999, complainant filed a formal equal employment opportunity
complaint of 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. In her complaint. complainant alleged that she was
discriminated against on the bases of sex (female), age (DOB: 11/12/1953),
and marital status (single) when she was subjected to a hostile work
environment.<1> The incidents comprising the claim of hostile work
environment include: the denial of training; a letter of reprimand;
and termination during her probationary period. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and in lieu of a hearing before an EEOC Administrative Judge,
requested a final agency decision. The agency subsequently issued a
final decision, dated September 20, 2000, finding no discrimination.
The agency gave complainant exclusive appeal rights to the Merit System
Protection Board (MSPB).
On March 22, 2001, complainant submitted a letter to the EEOC's former
Chairwoman requesting assistance. The Office of Federal Operations
docketed the letter as the instant appeal. In her letter, complainant
states that she filed an appeal with the MSPB which the MSPB dismissed
for lack of jurisdiction. Complainant points out that since the agency
considered her complaint a �mixed case complaint,� as evidenced by the
exclusive appeal rights to the MSPB, the agency violated the Commission's
regulations when it gave her the option of requesting a hearing before
an EEOC Administrative Judge or requesting an immediate final decision.
In conclusion, complainant requests that her complaint be reinstated in
its entirety.
EEOC regulation 29 C.F.R. � 1614.302(d)(2) states that upon the conclusion
of an investigation of a mixed case complaint, the agency will issue a
notice in accordance with 29 C.F.R. � 1614.108(f) advising complainant
that a final decision will be issued with 45 days without a hearing.
EEOC regulation 29 C.F.R. � 1614.302(d)(3) states that at the time
the agency issues its final decision on a mixed case complaint, the
agency shall advise the complainant of the right to appeal to the MSPB
(not EEOC). EEOC regulation 29 C.F.R. � 1614.302(b) states that if
an individual files a timely appeal with the MSPB from the agency's
processing of a mixed case complaint and the MSPB dismisses it for
jurisdictional reasons, the agency shall reissue a notice under 29
C.F.R. � 1614.108(f) giving the individual the right to elect between
a hearing before an Administrative Judge or an immediate final decision.
The only things that the Commission can ascertain with any degree of
certainty from the record are that: complainant was not counseled in
accordance with 29 C.F.R. � 1614.302(b); complainant was given exclusive
appeal rights to the MSPB when the agency issued its final decision;
and complainant believes that she has not had a hearing �by an impartial
entity.� Although complainant has already declined her right to request
a hearing before an EEOC Administrative Judge, we decline to find
that complainant has waived her right to a hearing because the notice
was received by complainant in error.<2> 29 C.F.R. � 1614.302(d)(2).
Accordingly, we vacate the agency's final decision and remand this matter
to the agency to grant complainant the opportunity to request a hearing
before an EEOC Administrative Judge or to receive a final agency decision.
29 C.F.R. � 1614.302(b).
ORDER
The agency is ordered to issue complainant a notice under 29 C.F.R. �
1614.108(f) giving complainant the right to elect between a hearing before
an EEOC Administrative Judge or an immediate final decision. The agency
shall issue this notice within forty (45) calendar days from the date
this decision becomes final. A copy of the agency's notice shall be
sent to the Compliance Officer as referenced herein. If complainant
declines to request a hearing before an EEOC Administrative Judge,
the agency is ordered to take action pursuant to 29 C.F.R. � 1614.110(b).
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
August 1, 2002
__________________
Date
1 Marital status is not a protected basis
under any of the statutes enforced by the Equal Employment Opportunity
Commission.
2 Moreover, complainant declined to request a hearing because, inter
alia, she could not afford the costs of her own travel or the travel of
her witnesses to the hearing location. We note that it is the agency's
obligation to pay travel expenses for witnesses who work for it or for
another federal agency. See Equal Employment Opportunity Management
Directive 110, November 9, 1999, Chapter 6, Section VIII. Although the
agency is not responsible for the travel expenses of complainant because
she is no longer employed by the agency, id. at B(2), it is in the
discretion of an Administrative Judge to determine whether testimony
via telephone or video may be appropriate.