01A14711jennings
03-26-2002
Ruth J. Jennings, Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.
Ruth J. Jennings v. Department of Justice
01A14711
March 26, 2002
.
Ruth J. Jennings,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service)
Agency.
Appeal No. 01A14711
Agency No. I98W080
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission VACATES the FAD.
The record reveals that during the relevant time, complainant was serving
a two-year term as a District Adjudications Officer at the Immigration
and Naturalization Service's Los Angeles District Office. Complainant
sought EEO counseling and subsequently filed a formal complaint on July
21, 1998, alleging that she was discriminated against on the bases of
race (African-American) and age (53, at relevant time) when she was
not selected for a Supervisory District Adjudications Officer (SDAO)
position for which she had applied on April 15, 1998.
EEOC Regulation 29 C.F.R � 1614.108(f) provides that a complainant has
the right to request a hearing before an EEOC Administrative Judge (AJ)
or an immediate final decision from the agency pursuant to 29 C.F.R
� 1614.110, within thirty days of receipt of the investigative file.
At the conclusion of the investigation, complainant was informed, by
letter dated September 16, 1999, of this right. According to the agency,
it did not receive a response from complainant within the applicable
time period. Therefore, the agency issued a FAD.
In the FAD, the agency assumed that the record established an
inference of discrimination with regard to complainant's race and
age. However, the agency noted that three selection panel members
provided legitimate non-discriminatory reasons for selecting other
candidates over complainant. The agency concluded that complainant
was unable to establish that the agency officials' stated reasons for
not selecting complainant for the position were a pretext for race or
age discrimination.
On appeal, complainant argues that she was improperly denied her right to
a hearing before an AJ. She states that she timely requested a hearing
by mailing the request to the agency within thirty days of receiving
the investigative file. To support her contention, complainant submits
a return receipt form indicating that a piece of mail was received
by the agency's EEO Office on October 18, 1999. The agency notes that
it forwarded complainant a copy of the investigative file and advised
complainant of her right to request a hearing by a letter dated September
16, 1999. The agency has taken the position that complainant failed
to request a FAD with or without a hearing within the applicable time
period and therefore has waived her right to a hearing.
The Commission is satisfied that the complainant requested a hearing
within the applicable thirty day period. The only direct evidence on
the timeliness issue is complainant's representation that she mailed
the request on time. This is corroborated to some extent by the return
receipt which shows that something was delivered to the agency on October
18,1999. In addition, it is reasonable to conclude that complainant
actually received the investigative file and notice of right to request
a hearing at least one day after September 16, 1999 (September 17th
or later) and that complainant's letter was mailed at least one day
before October 18, 1999 (October 17th or earlier) and, therefore, that
complainant's request was mailed within the thirty-day limit.
Accordingly, based on the complainant's evidence of a timely request
for a hearing, and in the interest of justice, it is the decision of the
Commission to VACATE the FAD. Complainant's complaint is hereby REMANDED,
and the agency is directed to comply with the ORDER set forth below.
ORDER
The complaint is remanded to the Hearings Unit of EEOC Washington Field
Office to schedule a hearing in an expeditious manner. The agency is
directed to submit a copy of the complaint file to the EEOC Hearings Unit
within fifteen 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 decision 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
March 26, 2002
__________________
Date