Sandra Martinez, Complainant,v.Thomas J. Ridge, Secretary, Department of Homeland Security Agency.

Equal Employment Opportunity CommissionNov 8, 2004
01a43877 (E.E.O.C. Nov. 8, 2004)

01a43877

11-08-2004

Sandra Martinez, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security Agency.


Sandra Martinez v. Department of Homeland Security

01A43877

November 8, 2004

.

Sandra Martinez,

Complainant,

v.

Thomas J. Ridge,

Secretary,

Department of Homeland Security

Agency.

Appeal No. 01A43877

Hearing No. 340-A1-3046X

Agency Nos. I-98-W-058; I-00-W111

DECISION

A decision on this matter requires an understanding of the procedural

history of the case. After complainant filed a formal EEO complaint and

received the report of investigation, complainant exercised her right to

request a hearing before an EEOC Administrative Judge (AJ). Subsequently,

on January 1, 2003, complainant withdrew her request for a hearing.

On January 31, 2003, the AJ issued an Order of Dismissal (Order) in which

the AJ granted the complainant's request for withdrawal and remanded the

complaint to the agency to take final action consistent with 29 C.F.R. �

1614.110(b). The agency, however, took no action. Instead of construing

the AJ's Order for what it was - a grant of complainant's withdrawal

of a hearing request and a remand to the agency for final action -

the agency interpreted the Order as one dismissing the complaint.

The agency argues that its interpretation and actions are valid under

section 29 C.F.R. � 1614.109(i). See Agency's Brief in Opposition to

Complainant's Request for a Hearing and Sanctions, dated Aug. 8, 2003

(Agency's Brief), at 2-3. Pursuant to that section, if an agency does

not issue a final order within forty days of receipt of the AJ's decision

in accordance with 29 C.F.R. � 1614.110, the AJ's decision becomes the

final action of the agency. See 29 C.F.R. � 1614.109(i). Although there

is no dispute as to the meaning of the regulation, the agency erred

in applying it to this matter because the AJ did not issue a decision

dismissing the complaint. Although admittedly the AJ used the word

�dismissal� in her Order, she merely granted the complainant's request

for a withdrawal of a hearing. See Order at 1 (�Notice is hereby given

that the ... case is DISMISSED pursuant to the request for Final Agency

Decision dated January 1, 2003.�). The AJ's Order was not a dismissal

of the complaint. On the contrary, the Order directed the agency to

take final action within sixty days of receipt of the Order. See id.

After waiting and insisting that the agency issue a final decision on

her complaint, complainant appealed to the Commission on April 26, 2004.

Only after filing the appeal did the Agency respond to complainant with

the Agency's Brief. The Commission finds that the agency failed in

its obligation to issue a timely final agency decision in accordance

with the AJ's directions. Contrary to the agency's argument that the

AJ issued a decision dismissing the complaint, and that it had thereby

accepted by default the AJ's decision after the forty day time period

lapsed, an analysis of the case file and the AJ's Order reveals that no

such decision had been issued. The AJ did not dismiss the complaint.

As such, the agency's decision as expressed in the Agency's Brief is

VACATED, and the agency is directed to comply with the Order below.

ORDER

Within sixty (60) calendar days of this decision becoming final, the

agency is hereby ordered to issue a final agency decision 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

November 8, 2004

__________________

Date