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.