01980917
01-10-2000
Edwin Buccat, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas) Agency.
Edwin Buccat v. United States Postal Service
01980917
January 10, 2000
.
Edwin Buccat,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific/Western Areas)
Agency.
Appeal No. 01980917
Agency No. 4F-945-0067-97
DECISION
On November 10, 1997, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated October 3, 1997,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. � 2000e et seq.<1> The Commission accepts complainant's appeal
in accordance with EEOC Order No. 960, as amended.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of national origin (Filipino) when, on
October 24, 1996, he was issued a Notice of Suspension of 14 Calendar
Days with an effective date of November 18, 1996, while others either
had their suspensions rescinded or were given only a four day suspension.
A review of the record indicates that complainant sought counseling
on November 20, 1996, and following a final interview by letter dated
January 8, 1997, filed a formal complaint on January 10, 1997. The case
was investigated and a copy of the investigative file, as well as a
letter outlining complainant's appeal rights, was sent to complainant
on July 17, 1997.
The record further indicates that delivery was attempted at complainant's
address of record on July 19, 1997, July 25, 1997, and August 5,
1997. Thereafter, the investigative file and the letter explaining
complainant's appeal rights were returned to the agency unclaimed. The
agency then issued a final decision on the merits of the complaint based
on the evidence in the investigative record.
On appeal, complainant contends that the agency "erred" in prematurely
determining the merits of his complaint, without affording him a hearing
before an EEOC Administrative Judge. Complainant further contends,
in a sworn statement dated November 5, 1997, that he has lived at the
current address of record for over two years; that he was in town in
July and August 1997, on the dates delivery of the investigative file was
purportedly attempted; and that he has yet to receive the investigative
file or any notices of attempted delivery of it. He contends that had
he received the notice, he would have requested a hearing.
In Battle v. United States Postal Service, EEOC Request No. 05910441
(June 13, 1991), the Commission held that "(a)ctual receipt of the
proposed disposition [now investigative file with notice of right to
request a hearing under Part 29 C.F.R. � 1614] is necessary ... to
commence the running of the statutory time limit" in which to request
a hearing. Accord, Erdman v. Department of the Army, EEOC Request
No. 05950215 (May 23, 1996). Because the agency has failed to provide
any evidence whatsoever to show that complainant was in actual receipt
of the investigative file with the notice of right to request a hearing,
we find that the FAD erred when it failed to address this issue and
instead made a finding on the merits. Accordingly, we vacate the agency's
decision on the merits of complainant's complaint and remand the case
to the agency to forward to an EEOC Administrative Judge for hearing in
accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.109).
ORDER
The agency is ORDERED to process complainant's complaint in accordance
with 29 C.F.R. � 1614.109 et seq. Specifically, the agency shall
forward complainant's complaint file to an EEOC Administrative Judge for
scheduling of a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency shall also acknowledge to the
complainant that it has received the remanded complaint within fifteen
(15) calendar days of the date this decision becomes final. A copy of
the agency's letter of acknowledgment to complainant and a copy of the
correspondence that transmits the remanded complaint to the Administrative
Judge 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. [PAGE 4]
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 service's 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2000
__________________
Date
1On 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.