Edwin Buccat, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Areas) Agency.

Equal Employment Opportunity CommissionJan 10, 2000
01980917 (E.E.O.C. Jan. 10, 2000)

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had their suspensions rescinded or were given only a four day suspension.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.