01A11634
03-29-2001
Thomas R. Ward, Jr., Complainant, v. John Ashcroft, Attorney General, Department of Justice, (Immigration and Naturalization Service) Agency.
Thomas R. Ward, Jr. v. Department of Justice (Immigration and
Naturalization Service)
01A11634
March 29, 2001
.
Thomas R. Ward, Jr.,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
(Immigration and Naturalization Service)
Agency.
Appeal No. 01A11634
Agency No. I-98-W081
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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. The appeal is accepted pursuant
to 29 CFR � 1614.405. Complainant alleges that he was discriminated
against on the basis of his race (White) when he was terminated because
of a DUI conviction. For the following reasons the Commission VACATES
the agency's final decision and REMANDS the complaint for a hearing.
On appeal complainant asserts that he was denied a hearing, despite
his timely request. The agency's FAD states that complainant did not
tender a timely request for a hearing. Our regulations provide that a
complainant has the right to request a hearing before an administrative
judge within thirty (30) days of receipt of the investigative file. See
29 C.F.R. � 1614.108(f). On appeal, complainant provides what appears
to be a copy of a letter and return receipt. The letter requests a
hearing and the return receipt evidences that the agency's headquarters
EEO office received a letter from complainant on June 7, 1999. We find
that complainant was advised of his right to request a hearing on May 17,
1999 and that complainant made a June 7, 1999 hearing request within the
thirty day time limitation provided by our regulations. We remand this
matter back for a hearing in order to preserve complainant's request for
a hearing before an EEOC Administrative Judge. We therefore vacate the
agency's finding of no discrimination.
ORDER
The PARTIES are ORDERED to take the following actions:
(1) Within thirty (30) days from the date this decision becomes final, the
agency shall provide complainant with a copy of the investigative file.
(2) Within thirty (30) days from the date this decision becomes final,
complainant may submit a written request for the appointment of an
administrative judge directly to the EEOC Los Angeles District Office,
255 Temple Street, 4th Floor, Los Angeles, California 90012. Complainant
is advised to submit a copy of this decision with his submission to
the EEOC District Office. The complainant shall send a copy of the
request for a hearing to the agency EEO office. Within fifteen (15)
days of receipt of the request for a hearing, the agency shall provide a
copy of the complaint file to the EEOC, and if not previously provided,
to the complainant. See, 29 C.F.R. � 1614.108(g).
(3) If complainant no longer desires a hearing, he may request a final
decision from the agency within thirty (30) days from the date this
decision becomes final. If complainant requests a final decision, the
agency shall issue the final decision within sixty (60) days from the date
the agency receives complainant's request. See, 29 C.F.R. � 1614.110(b).
(4) A copy of the agency's letter providing complainant with a copy
of the investigative file must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993).
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 (M0900)
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 29, 2001
Date