0120114010
02-07-2012
Robert J. Jess, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert J. Jess,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120114010
Agency No. 200J06072010102014
DECISION
Complainant filed a timely appeal with this Commission from the Final
Agency Decision (FAD) dated July 29, 2011, dismissing 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. and Section 504 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Program Assistant at the Agency’s Veteran Affairs Medical Center
facility in Madison, WI. On April 19, 2010, Complainant filed a formal
complaint alleging that the Agency subjected him to discrimination on
the bases of sex (male), disability (mental), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964,
when he was continually harassed by various employees.
After the investigation into his formal EEO Complaint, Complainant
exercised his right to request a hearing before an EEOC Administrative
Judge (AJ). Subsequently, on March 16, 2011, Complainant withdrew his
request for a hearing. On March 21, 2011, the AJ issued an Order of
Dismissal in which the AJ granted Complainant's request for withdrawal
per Complainant’s letter and ordered the Agency to issue a FAD.
The Agency dismissed the complaint on July 27, 2011, stating in its
FAD that Complainant requested that his case be dismissed with the
letter he submitted to the AJ. In addition, the Agency stated that it
presumed Complainant wanted to pursue a judicial remedy for he requested
a letter-to-sue in his request to withdraw the hearing.
CONTENTIONS ON APPEAL
On appeal, Complaint argues that the Agency’s decision was a mistake,
and that the Agency erred in applying the AJ’s Order of Dismissal
as a dismissal of the complaint. Complainant further argues that the
letter he submitted to the AJ requested a withdrawal for a hearing and
not the complaint. The Agency did not submit any statement on appeal
in this matter.
ANALYSIS AND FINDINGS
The Commission finds that the Agency erred. A close review of the AJ's
order reveals the intention was for the Agency to issue a FAD on the
merits of Complainant's claim. Complainant’s letter to the AJ with
the request of a letter-to-sue was intended to seek a Final Agency
Decision without a hearing. Although the AJ's order did state that the
discrimination case was dismissed, the order also stated that this action
was taken because Complainant asked for a withdrawal as per his letter.
There was no evidence in the record to indicate that, subsequent to the
request to withdraw the hearing, Complainant communicated to the AJ that
his intent was anything other than simply canceling the imminent hearing
and seeking a FAD instead.
Accordingly, the Commission REVERSES the agency's final action dismissing
Complainant's complaint and REMANDS the complaint to the agency in
accordance 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
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
February 7, 2012
__________________
Date
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0120114010
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120114010