0120110863
09-07-2012
Luis A. Ortiz, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Transportation Security Administration), Agency.
Luis A. Ortiz,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Transportation Security Administration),
Agency.
Appeal No. 0120110863
Agency No. HS TSA-006803-2009
DECISION
Complainant filed an appeal from the Agency's October 19, 2010 Final Decision concerning his equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission VACATES the Agency's Final Decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Transportation Security Inspector at the Agency's Dulles International Airport facility in Chantilly, Virginia. On August 23, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), national origin (Columbian), and age (42) when on June 4, 2009, Complainant was terminated from his position.
The record reveals that in a decision dated February 12, 2010, the Merit Systems Protection Board (MSPB) dismissed Complainant's appeal filed December 31, 2009, concerning the same removal action. In its Decision, the Board affirmed its earlier finding that the MSPB had no jurisdiction over the removal matter.
The Agency subsequently issued its Final Decision on October 19, 2010, in which it concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
On appeal, Complainant claims that he was never notified of his right to request a hearing before an EEOC Administrative Judge as required once his MSPB appeal was dismissed.
ANALYSIS AND FINDINGS
Where an individual files an appeal with the MSPB which is dismissed for lack of jurisdiction, the matter will not be viewed as a "mixed case"; rather, it will be treated as a "non-mixed" matter and processed accordingly. See 29 C.F.R. � 1614.302(b) and (c). Where the MSPB dismisses for lack of jurisdiction, the Agency must resume processing the matter from the point processing ceased under 29 C.F.R. Part 1614 and grant Complainant the right to elect between a hearing before an EEOC Administrative Judge and an immediate final decision. See 29 C.F.R. � 1614.302(b). Complainant argues that he was not given a right to request a hearing. The Agency has not asserted that Complainant was given a right to request a hearing and there is no indication in the record that such a right was provided to Complainant. Therefore, we shall vacate the Agency's decision and order the Agency to provide Complainant with the right to request a hearing before an EEOC Administrative Judge.
CONCLUSION
We VACATE the Agency's Final Decision and we REMAND the complaint to the Agency for further processing as directed herein.
ORDER
Within 30 days of the date this decision becomes final and pursuant to 29 C.F.R. �1614.108(f), the Agency shall notify Complainant of his right to elect between a hearing before an EEOC Administrative Judge or an immediate final decision. A copy of the letter to Complainant informing of his right to request a hearing shall be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 7, 2012
__________________
Date
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0120110863
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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