01986876
04-24-2000
Carol L. Robinson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Carol L. Robinson v. United States Postal Service
01986876
April 24, 2000
Carol L. Robinson, )
Complainant, )
) Appeal No. 01986876
v. ) Agency No. 4-I-570-0005-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The complainant timely initiated an appeal from a final agency decision
dated August 10, 1998, concerning her complaint of unlawful employment
discrimination on the basis of reprisal, in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The complainant alleges she was discriminated against when on or about
November 14, 1997, she was notified that she was not selected for a
Human Resources Associate, EAS-11 position. The appeal is accepted
pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. � 1614.405). For the following reasons, the Commission vacates
and remands the agency's decision.
By letter dated June 23, 1998, the agency informed the complainant of her
right to elect a hearing on the matter or a final agency decision based
on the investigative file which was enclosed. The record does not show
when the complainant received the above package. Under our regulations,
the complainant had 30 days from receipt of the investigative file to
request a hearing.
On appeal, the complainant submitted a letter dated July 9, 1998, in which
she requested a hearing before an AJ. The complainant also submitted a
signed statement in which she stated that she mailed the July 9, 1998
letter by first class mail on July 10, 1998, from the window section
of the main Post Office in Sioux Falls, South Dakota. The complainant
further stated that the letter was not returned to her by the Post
Office and that it was properly sent. Therefore, she contends that the
agency received her request for a hearing within the 30 day period as
required by regulation. On August 10, 1998, the agency issued a final
decision without regard to the complainant's election for a hearing.
In its final decision the agency stated that it "had not received a
response from complainant regarding rights to either a hearing or a
final agency decision," so it was issuing a final decision in the matter.
On appeal, the complainant contends, among other things, that she was
entitled to the hearing which she had properly requested within 30 days
of receipt of the investigative file and notice. Therefore, the agency
had no right to render a final decision without the requested hearing.
The agency stands on the record and requests that we affirm its final
decision.
The Commission has previously held that a complainant's actual receipt of
the notice of rights was necessary to commence the running of the time
limitation in which to request a hearing. See Erdmanv. U.S. Department
of the Army, EEOC Request No. 05950215 (May 23 1996). After a thorough
review of the record, we find that the evidence is sufficient to allow
a determination that the complainant properly requested a hearing which
the agency did not honor.
Our regulations and the EEOC Management Directive (MD) 110, as revised,
November 9, 1999 for 29 C.F.R. Part 1614 require agencies to notify
complainants of their right to elect to have a hearing and decision
from an administrative judge or to request an immediate final decision
from the agency with which the complaint was filed. See 64 Fed. Reg
37,644, 37,656-57 (1999) (to be codified and hereinafter referred to
as 29 C.F.R. � 1614.108(f)) and EEOC Management Directive (MD) 110, as
revised, November 9, 1999, Chapter 5, page 5-3. As indicated in this
decision, the agency does not dispute nor provide evidence or argument
that the complainant received the election notice at an earlier date.
In its FAD, the agency stated that it did not receive the complainant's
election form requesting a hearing.
Given the complainant's signed statement on appeal stating that she both
timely and properly posted her request for a hearing and the agency's
silence on the matter in its appeal response, we vacate the agency's
finding of no discrimination, and remand this matter for the further
processing in accordance with this decision and the ORDER set forth below.
ORDER
Within fifteen (15) calendar days from the date this decision becomes
final, the agency shall provide a copy of the complaint file to the
EEOC District Office with a copy of this decision and the complainant's
request for a hearing. See 64 Fed. Reg. 37,644, 37,657 (1999) (to be
codified at 29 C.F.R. � 1614.108(g)).
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 (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
04-24-00
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
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.