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).