01972189
01-12-2000
Ann L. Wilson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Mid West Region), Agency.
Ann L. Wilson v. United States Postal Service
01972189
January 12, 2000
Ann L. Wilson, )
Complainant, )
) Appeal No. 01972189
v. ) Agency No. 4-I-553-1073-94
) Hearing No. 260-96-8078X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Mid West Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her Equal Employment Opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The Commission
accepts the appeal in accordance with EEOC Order No. 960.001, and for
the following reasons, we vacate and remand the FAD.
Complainant was working as a Transitional Employee Letter Carrier at
an agency facility in Minneapolis, Minnesota. Complainant filed her
first formal EEO complaint in July 1994 (Agency No. 4-I-553-1073-94)
alleging that she was "let go" and that agency officials placed a
memo recommending that she not be rehired in her personnel folder; her
second in August 1994 (Agency No. 4-I-553-1092-94) alleging that she
was verbally attacked by an agency official; and her third in September
1994 (Agency No. 4-I-553-1098-94) alleging that agency officials placed
biased and untruthful documents in her personnel folder. The Commission
affirmed the agency's dismissal of complainant's second complaint.
See Wilson v. United States Postal Service, EEOC Appeal No. 01954871
(July 18, 1996). The agency investigated but did not consolidate the
first and third complaints. At the conclusion of each investigation,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
The Commission cannot, with certainty, determine exactly what transpired
after the complaints were assigned to the AJ. In the record before
us, there is a Recommended Decision (RD) finding no discrimination.
The RD has no hearing number and no agency number. Upon review of the
RD, we note that the stated issue was raised in the third complaint;
the procedural history is almost consistent with the third complaint;
the agency's stated reasons for its action refer to the claim raised in
the first complaint; and the conclusion of law only addresses the basis
raised in the first complaint. The RD is devoid of legal reasoning, and
we are unable to ascertain which complaint the AJ attempted to adjudicate.
Moreover, we cannot ascertain which complaint the FAD concerns. While the
FAD adopts the AJ's finding of no discrimination, it identifies the
claim raised in the first complaint but references the claim by the
hearing number and the agency number assigned to the third complaint.<2>
Complainant has submitted a lengthy brief in support of her appeal.
Complainant argues that summary judgment was inappropriate because
genuine issues of material fact existed. Review of the record reveals
that credibility is at issue, and it is clear from the confusion generated
by the administrative processing of at least one of her complaints that
the issuance of an RD without a hearing deprived complainant of a full
and fair opportunity to present her case. See Pedersen v. Department
of Justice, EEOC Request No. 05940339. We therefore find that the AJ
erroneously issued an RD without holding a hearing. Accordingly, the
Commission vacates the FAD and remands this complaint to the Hearings
Unit of the Commission's Milwaukee District Office to be assigned and
scheduled for hearing. On remand, the assigned AJ will clarify the
status of agency complaint numbers 4-I-553-1073-94 and 4-I-553-1098-94
and if appropriate, consolidate both the complaints.
ORDER
(1) The Commission remands this complaint to the Hearings Unit of the
Commission's Milwaukee District Office to be assigned and scheduled
for hearing.
(2) The agency shall send a copy of the complaint record to the Hearings
Unit of the Commission's Milwaukee District Office within thirty days
of receipt of this decision.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (R1199)
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:
January 12, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Date
__________________________
Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 In order to maintain the Commission's records, we adopt both the
hearing number and the agency number which reference the first complaint.
The adoption of these numbers is solely for the purpose of internally
tracking this decision and should not be interpreted to mean that the
first complaint was the complaint adjudicated by the AJ and/or addressed
in the FAD from which complainant now appeals.