Charles F. Varecha, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01984187 (E.E.O.C. Mar. 17, 2000)

01984187

03-17-2000

Charles F. Varecha, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Charles F. Varecha v. United States Postal Service

01984187

March 17, 2000

Charles F. Varecha, )

Complainant, )

) Appeal No. 01984187

v. ) Agency No. 1-J-609-1085-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning his complaint of unlawful employment discrimination on the

basis of physical disability (carpal tunnel syndrome), in violation of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1>

The record reveals that during the relevant time, complainant was

employed as a Maintenance Mechanic, at the agency's Chicago Bulk Mail

Center facility. Complainant alleged that he was discriminated against

when: (1) his light duty assignment was terminated on April 28, 1995;

(2) his bid for change of tour assignment was not honored; and (3) his

claim for compensation on account of a traumatic injury or occupational

disease was postponed.

Believing he was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a complaint on December 26, 1995.

At the conclusion of the investigation, complainant was sent a copy of

the investigation file by letter dated May 14, 1997. Complainant was

notified of the opportunity to request either a hearing before an EEOC

Administrative Judge (AJ) or a final agency decision without a hearing.

The agency did not receive a response from complainant, therefore the

agency issued complainant its FAD.

The FAD concluded that complainant failed to establish a prima facie

case of disability discrimination because he presented no evidence that

similarly situated individuals not in his protected classes were treated

differently under similar circumstances. Further, the FAD found that

complainant failed to establish a nexus between the agency's action

and his impairment. Accordingly, the FAD found that the agency had not

discriminated against complainant.

On appeal, complainant contends that he requested a hearing before an

AJ and submitted a copy of a letter dated June 7, 1997, in which he

makes his request. The agency replied by stating it never received

complainant's request and therefore issued a FAD. However, the agency

noted that it would be willing to vacate the FAD and forward the file

for a hearing with an EEOC AJ.

Under 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108(g)) ) provides, in relevant part, that

the agency shall notify a complainant that the formal investigation of his

complaint has been completed, shall provide the complainant with a copy

of the investigative file, and shall notify the complainant that, within

thirty (30) days of receipt of the investigative file, the complainant has

the right to request a hearing before an AJ or may receive an immediate

final action by the agency pursuant to 64 Fed. Reg. 37,644, 37,657 (1999)

(to be codified and hereinafter referred to as 29 C.F.R.�1614.110)

from the agency with which the complaint was filed.

The record reveals that complainant received the required notification

by letter dated May 14, 1997. On appeal, complainant avers that he made

a timely request for a hearing by written notice to the agency dated

June 7, 1997. However, the agency did not acknowledge his request,

instead issuing its FAD on March 19, 1998, finding no discrimination.

The FAD indicates that complainant did not request a hearing. However,

in support of his contention, complainant provides dated copies of his

request addressed to the agency.

Accordingly, based on complainant's evidence of a properly made and

timely request for a hearing, and in the interest of justice, it is the

decision of the Commission to VACATE the FAD. Complainant's complaint

is hereby REMANDED, and the agency is directed to comply with the ORDER

set forth below.

ORDER

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.109 et seq. Unless complainant indicates to the

agency that he no longer desires a hearing, the agency shall, within

thirty (30) calendar days of the date this decision becomes final,

request that the Commission appoint an Administrative Judge to conduct

a hearing on complainant's complaint.

The agency shall do everything within its power to expedite the scheduling

of the hearing. If complainant should decide he no longer desires a

hearing, the agency shall reissue its final decision, with appropriate

appeal rights, within thirty (30) calendar days of receiving notification

from complainant that he does not want a hearing.

A copy of the agency's request for a hearing must be sent to the

Compliance officer as referenced below.

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:

March 17, 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:

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.