Dan Minarchin, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionJan 12, 2000
01972531 (E.E.O.C. Jan. 12, 2000)

01972531

01-12-2000

Dan Minarchin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.


Dan Minarchin v. United States Postal Service

01972531

January 12, 2000

Dan Minarchin, )

Complainant, )

) Appeal No. 01972531

v. ) Agency No. 4E852125495

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific/Western Region), )

Agency. )

)

DECISION

Dan Minarchin (complainant) timely initiated an appeal of a final

agency decision (FAD) concerning his complaint of unlawful employment

discrimination on the basis of sex (male), in violation of Title VII of

the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The

appeal is accepted in accordance with EEOC Order No. 960.001.<1> For

the following reasons, the agency's decision is VACATED AND REMANDED.

The issue presented on appeal is whether the agency erroneously denied

complainant his right to a hearing before an EEOC Administrative Judge.

The record reveals that complainant and his representative received

copies of the investigative file and the appropriate appeal rights on

June 17, 1996. Under our regulations, complainant had thirty (30) days

from receipt of the investigative file to request a hearing, making July

17, 1996 the last day on which he could do so. In a letter dated August

2, 1996, the agency acknowledged that it received a hearing request on

July 17, 1996. However, the agency contended that because this request

was not signed by complainant, but only by complainant's non-attorney

representative, it was not a valid request. The agency did not receive

a hearing request signed by complainant until August 1, 1996, forty-five

days after complainant's receipt of the investigative file. The agency

therefore denied the hearing request as untimely and issued a FAD.

In support of its contention that a hearing request signed only

by complainant's non-attorney representative is invalid, the agency

cited to the letter informing complainant and his representative of

complainant's appeal rights. The last paragraph of this letter stated:

"Please be advised that unless you are an attorney, any request for a

hearing, a final agency decision, or a filing of a civil action must be

signed by the complainant." The agency cited no Commission regulations

or precedent for this proposition.

After a review of Commission regulations and precedent, we have found

nothing which supports the contention that a hearing request signed by

a non-attorney representative is invalid. Although we were unable to

discover any regulations or precedent that spoke directly to this issue,

we note that a non-attorney representative's signature on EEOC Form 573

is sufficient to request an appeal to the Office of Federal Operations.

Moreover, the Commission's Management Directive notes that an aggrieved

person may file a civil action directly in U.S. District Court under the

Age Discrimination in Employment Act by providing the Commission with

a notice of intent to sue, signed by complainant or the complainant's

representative. EEO MD-110, 3-10 (October 22, 1992). While these

situations are not identical to the one at hand, they do indicate that

the signature of a non-attorney representative is accepted in lieu

of an complainant's signature at various points in the EEO process.

We therefore see no reason, and the agency has not provided one, to

deprive complainant of a hearing in the face of a timely hearing request

from his representative.

CONCLUSION

Therefore, after a careful review of the record, it is the decision of

the Commission to VACATE the agency's final decision and REMAND this

matter for further processing in accordance with this decision and the

ORDER set forth below.

ORDER

The PARTIES are ORDERED to take the following actions:

Within thirty (30) days from the date this decision becomes final,

complainant may submit a written request for the appointment of an

administrative judge directly to the EEOC Phoenix District Office, 3300

N. Central Avenue, Suite 690, Phoenix, Arizona 85012-9688. Complainant

is advised to submit a copy of this decision with his submission to the

EEOC District Office. Complainant shall send a copy of the request for

a hearing to the agency EEO office.

Within fifteen (15) days of receipt of the request for a hearing,

the agency shall provide a copy of the complaint file to the EEOC and,

if not previously provided, to complainant. See 64 Fed. Reg. 37,644,

37,657 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.108(g)).

If complainant no longer desires a hearing, he may request a final

decision from the agency within thirty (30) days from the date this

decision becomes final. If complainant requests a final decision, the

agency shall issue the final decision within sixty (60) days from the date

the agency receives complainant's request. See 64 Fed. Reg. 37,644,

37,657 (to be codified and hereinafter referred to as 29 C.F.R. �

1614.110(b)).

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:

1/12/00

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

________________________

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.