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CARDENAS v. WALTERS

November 26, 1985

ANTHONY S. CARDENAS, Plaintiff,
v.
HARRY N. WALTERS, Administrator of the Veterans Administration, Defendant



The opinion of the court was delivered by: ZIEGLER

DONALD E. ZIEGLER, United States District Judge.

 MEMORANDUM OPINION

 Plaintiff, a former Wage Grade 9 plumber at the Veterans Administration Medical Center in Pittsburgh, Pennsylvania, requests this court to implement a recommended decision of an Equal Employment Opportunity Commission (EEOC) complaints examiner. The examiner concluded that plaintiff was discharged by the Veterans Administration because of his national origin or association with black workers. Plaintiff asserts that a rejection of the examiner's recommended decision by the Veterans Administration was not timely under agency regulations and moves for summary judgment. Defendant also moves for summary judgment on the basis that, as a matter of law, plaintiff cannot prove that he was not discharged for legitimate, nondiscriminatory reasons. Because we find that defendant did not reject the examiner's recommended decision within the time period set forth in its regulations, we shall grant plaintiff's motion and deny defendant's motion.

 I. History of Case

 An EEOC complaints examiner held a hearing in late summer 1982. His opinion, issued on January 11, 1983, concluded that plaintiff is a member of a protected group, that plaintiff was performing as well as other members of the plumbing shop, that plaintiff's supervisor (who once called plaintiff a "greasy wetback") evaluated plaintiff with prejudiced eyes, and that the supervisor's animus was passed along to the shop's head supervisor, who terminated plaintiff's employment. The examiner recommended that plaintiff be given a probationary period with appropriate back pay and reasonable attorney's fees. It was recommended that full back pay not be granted unless plaintiff can substantiate his claim that he was unable to secure employment since May 1979.

 After reviewing the recommended decision, the Veterans Administration Office of General Counsel issued the agency's final decision on February 14, 1983. The agency found that the complaint examiner's findings of fact were erroneous and that his conclusions were incorrect.

 Plaintiff then filed an appeal with the EEOC Office of Review and Appeals. On April 24, 1985, the EEOC issued its final decision affirming the agency's decision. On July 15, 1985, the instant suit was filed.

 In discovery, plaintiff learned that the complaints examiner's recommended decision was received by the Veterans Administration's mail and messenger division on January 14, 1983. Noting that the agency's rejection of the recommended decision was not issued until February 14, 1983, thirty-one days after receipt, plaintiff moved for summary judgment on the basis that any agency decision more than 30 days after submission of the examiner's recommended decision is a nullity.

 II. Discussion

 Titled, "Avoidance of Delay," 29 C.F.R. ยง 1613.220(d) provides that a complaints examiner's recommended decision shall become binding on the agency unless the agency issues a final decision within 30 calendar days of the date the recommended decision is "submitted." The purpose of this regulation "is manifestly to ensure that complaints are promptly resolved. Converting an adverse 'recommendation' into a final decision after a specified period of time is simply a means to ensure that the agency will not stall resolution of the appeal and ultimate implementation of remedial action." Pearch v. Pierce, 31 F.E.P. Cases 1403, 1405 (D.C.D.C. 1984).

 The 30-day clock begins to run when the recommended decision is "submitted," according to the regulation. The date of submission has been interpreted consistently by the agency as the date the recommendation is received by the reviewing agency. As the court stated in Marizan v. E.E.O.C., 33 F.E.P. Cases 1833, 1835 (D.C.D.C. 1984): "Section 1613.220(d) does not clearly state that a recommended decision is automatically and contemporaneously submitted to the (agency) when it leaves the hands of the complaints examiner." The court held that the agency's interpretation of the date of submission as the date of receipt is a reasonable interpretation of its own regulation and should be accorded deference. See United States v. Larionoff, 431 U.S. 864, 53 L. Ed. 2d 48, 97 S. Ct. 2150 (1977).

 In the instant case, defendant argues that the date of receipt is January 17, 1983, the date the recommended decision was "logged-in" at the Veterans Administration Office of General Counsel. Defendant asserts that the date of receipt is not January 14, 1983, the date a certified mail receipt indicates that the decision arrived at the Veterans Administration building.

 While deference must be given to an agency's interpretation of its own regulations, such interpretation cannot be upheld if it flies in the face of the regulation's intent or if it is plainly erroneous or inconsistent with the wording of the regulations. Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 89 L. Ed. 1700, 65 S. Ct. 1215 (1945); Beatty v. Schweiker, 678 F.2d 359, 360 (3d Cir. 1982). Government agencies must abide by the spirit and intent of their own published regulations. Griffin v. Harris, 571 F.2d 767 (3d Cir. 1978). We find the agency's refusal to acknowledge that the recommended decision ...


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