01A22047
03-04-2003
Anthony Hopkins, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Hopkins v. United States Postal Service
01A22047
March 4, 2003
.
Anthony Hopkins,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22047
Agency No. 4-G-730-0118-01
DECISION
Complainant timely initiated this appeal from the final agency decision
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 C.F.R. � 1614.405. At all times relevant to the instant appeal,
complainant was employed as a Part Time Flexible (PTF) City Carrier at
the agency's post office in Spiro, Oklahoma. Complainant alleged in his
complaint that he was subjected to unlawful discrimination on the basis
of his sex, and in retaliation for prior participation in protected
equal employment opportunity (EEO) activity, when, on April 26, 2001,
the Postmaster from another post office subjected him to harassment and
required him to carry mail at the other post office.
In its final decision, the agency found no discrimination. The agency
noted in its decision that, in a letter dated August 24, 2001, it
notified complainant and his attorney of record of his right to request
a hearing before an EEOC Administrative Judge or, alternatively, to
receive a final decision by the agency without a hearing. The agency
further noted that complainant failed to respond to this notice, and,
therefore, it was issuing its final decision in the matter without a
hearing. Complainant, however, states in his appeal to the Commission
that he never received any correspondence from the agency pertaining to
its investigation of his complaint, including the investigative file,
and that he never received the aforementioned hearing request notice.
The Commission's regulations require that agencies timely complete their
investigation of discrimination complaints, and that they subsequently
provide the investigative file developed in that investigation to the
complainant. 29 C.F.R. � 1614.108(f); EEOC Management Directive 110,
ch. 5, p. 28 (Nov. 9, 1999). The agency is also required to provide the
complainant with notice that, within thirty days of his or her receipt
of the investigative file, he or she has the right to request a hearing
and decision from an Administrative Judge, or, in the alternative, he or
she may request an immediate final decision from the agency with which
the complaint was filed. 29 C.F.R. � 1614.108(g). If the complainant
fails to reply to this notice, the agency is required to take final
action by issuing a final decision. Id. � 1614.110(b).
Our review of the record on appeal reveals that, while the agency claims
to have conformed to the investigative file and hearing notice provisions
of our regulations, there is no evidence in the record in support of
these assertions. While the record on appeal includes certified mail
receipts from agency mailings to complainant during the counseling
stage of the EEO process, and certificates of service from the EEO
Investigator's mailing of affidavit requests to complainant, there is
no such similar evidence that the agency complied with our regulations
regarding providing the complainant a copy of the investigative file and
notice of the right to request a hearing. Therefore, we find that the
agency has failed to establish that it has satisfied its obligation to
provide complainant with the investigative file and notice of his right
to request a hearing before an Administrative Judge. Accordingly, it
is the decision of the Commission to VACATE the agency's final decision
in the matter, and to REMAND the matter to the agency to continue the
administrative processing of the complaint, as ordered below.
ORDER
The agency is ordered to continue the administrative processing of the
subject complaint as follows: within thirty (30) calendar days of the
date this decision becomes final, the agency shall provide complainant
with a copy of the investigative file and notice of his right to request
a hearing before an EEOC Administrative Judge, as required pursuant to
29 C.F.R. � 1614.108. Copies of the investigative file and the notice
provided to complainant must be submitted to the Compliance Officer,
as referenced below. The agency shall then continue the administrative
processing of the subject complaint, from the point of the agency's
provision to complainant of the investigative file and notice of his right
to request a hearing, pursuant to and consistent with the Commission's
regulations.
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
March 4, 2003
Date