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

Equal Employment Opportunity CommissionNov 9, 1999
01971995 (E.E.O.C. Nov. 9, 1999)

01971995

11-09-1999

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


Don A. Kaiser v. United States Postal Service

01971995

June 20, 2000

Don A. Kaiser, )

Complainant, )

) Appeal No. 01971995

v. ) Agency No. 5D136392

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Pacific/Western Region), )

Agency. )

)

DECISION

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

concerning his complaint of unlawful employment discrimination on the

basis of race (Caucasian), color (white), reprisal (prior EEO activity),

and mental disability (Post Traumatic Stress Disorder), in violation of

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e

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

et seq.<1>

ISSUE PRESENTED

The issue presented herein is (1) whether complainant timely requested

a hearing pursuant to EEOC Regulations at 64 Fed. Reg. 37644, 37656

(to be codified at 29 C.F.R. �1614.108(g)); and whether complainant has

proven by the preponderance of the evidence that the agency terminated

his employment on the basis of race, color, reprisal, and/or disability

discrimination.

BACKGROUND

During the relevant time the complainant was employed as a letter

carrier in the agency's Los Feliz Station, Los Angeles district facility.

Believing he was the victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on August 2, 1993.

The agency accepted the complaint for investigation and finding no

discrimination, issued a FAD without a hearing on December 2, 1996.

On appeal, complainant maintains that he requested a hearing within the

appropriate time frame, but was denied the right to request a hearing

as provided in the Commission's regulations. The agency indicates that

complainant made an untimely request for a hearing and therefore it was

justified in rendering the FAD without honoring complainant's untimely

request for a hearing.

The record reveals that a postal carrier certified delivery of the

complainant's investigative file and appeal rights on September 10, 1996.

The record further reveals that complainant requested a hearing before

an administrative judge by letter postmarked on October 23, 1996.

ANALYSIS AND FINDINGS

Pursuant to EEOC Regulations at 64 Fed. Reg. 37644, 37656 (to be

codified at and hereinafter referred to as 29 C.F.R. � 1614.108(f),

complainant had 30 days from the date of receipt of the investigative

file and hearing rights to request a hearing. We note that complainant

has previously prevailed utilizing an argument similar to the one he

raises on appeal herein. See Kaiser v. USPS EEOC Appeal No. 01883100

(November 9, 1996). In Kaiser v. USPS, EEOC Appeal No. 01883100 (January

3, 1989), complainant's initial appeal raising this argument, we found

that the carrier certified delivery in that initial case was insufficient

to prove receipt of hearing rights required by C.F.R. � 1614.108(f).

Since carrier certified delivery did not prove receipt, we concluded

that the 30 day period could not have run.

We note that actual receipt of a document is generally necessary to

commence the running of a regulatory time limit. See Woehr v. United

States Postal Service, EEOC Request No. 05960657 (July 3, 1997). However,

a regulatory time limit may run where due diligence is used to deliver

appropriate rights to a complainant, but the effort is unsuccessful. Id.

In the Woehr case the Commission found that it had acted with due

diligence to provide a complainant with a copy of an appeal decision by

mailing it to the complainant twice, which resulted in six attempts to

deliver the decision over a two-month time span.

In this case we note that the agency sent the complainant the

investigative file and appeal rights by certified mail. The package

was returned to the agency and marked unclaimed. The package was resent

by carrier certified delivery. The carrier who delivered the package,

verified the address and the delivery of the package. On appeal, the

agency submits the carrier certification indicating that he delivered

the investigative file and hearing rights to complainant's address on

September 10, 1996 at 1:45 P.M. We also observe that the complainant has

appealed on three separate occasions to the Commission, each time denying

his receipt of appeal rights.<2> Based on this observation and on the

facts of this specific case we find that the agency used due diligence to

deliver the appropriate rights to complainant. Accordingly, the running

of the regulatory period began on the date of delivery, certified by

the carrier, September 10, 1996. Since complainant filed his request

for a hearing on October 23, 1996, we find that his request fell outside

of the time limit prescribed by 29 C.F.R. � 1614.108(f). Accordingly,

we find that the agency did not err in issuing a FAD without a hearing.

With respect to the merits of complainant's remaining reprisal, race,

color, and mental disability discrimination claim, we note that these

are claims of disparate treatment. In the absence of direct evidence

of discrimination, the allocation of burdens and order of presentation

of proof in a Title VII case alleging discrimination is a three-step

process. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973).

Although the initial inquiry in discrimination and reprisal cases usually

focuses on whether the complainant has established a prima facie case,

following this order of analysis is unnecessary when the agency has

articulated a legitimate, nondiscriminatory reason for its actions. See

Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31,

1990). In such cases, the inquiry shifts from whether the complainant

has established a prima facie case to whether she has demonstrated by

preponderance of the evidence that the agency's reasons for its actions

merely were a pretext for discrimination. Id.; see also United States

Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-717 (1983).

The agency offered a legitimate, nondiscriminatory reason for terminating

the complainant. Namely, that complainant had been absent from duty in

excess of one year. Complainant should have contacted the agency when his

benefits were cut off on October 26, 1989. When complainant failed to

contact the agency within one year from the date that his benefits were

cut off, the agency separated complainant from service, consistent with

the policy of the agency. In support of his claim, complainant asserts

his membership in protected classes and indicates that no other person

was treated in a similar manner. However, complainant failed to advance

a similarly situated comparator. Complainant fails to demonstrate by

a preponderance of the evidence that the agency's articulated reason is

a pretext for discrimination.

CONCLUSION

For the above stated reasons, the Commission AFFIRMS the agency's FAD.

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 (S0400)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. 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. If you

file a request to reconsider and also file a civil action, 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:

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.

2 See Kaiser v. USPS EEOC Appeal No. 01883100 (January 3, 1989), and

Kaiser v. USPS EEOC Appeal No. 01956922 (January 5, 1998).