Florence Wyche, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionMay 30, 2000
01973534 (E.E.O.C. May. 30, 2000)

01973534

05-30-2000

Florence Wyche, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas), Agency.


Florence Wyche v. United States Postal Service

01973534

May 30, 2000

Florence Wyche, )

Complainant, )

) Appeal No. 01973534

v. ) Agency No. 4G-700-1200-94

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Areas), )

Agency. )

)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination

on the bases of race (Black) and sex (female) in violation of Title VII

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

Complainant alleges she was discriminated against when she was harassed

by her supervisor on March 7, 1994, when he grabbed the back of her

neck and commented about where he was going to send her. The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. � 1614.405). For the following reasons, the agency's decision

is VACATED and REMANDED.

The record reveals that during the relevant time, complainant was employed

as a Transitional Carrier at the agency's Marrero, Louisiana facility.

In her affidavit, complainant testified that her supervisor grabbed her

neck and told her where he was going to send her. Complainant also

alleged that her supervisor told her that he liked her hair long and

she should grow it back.

Believing she was a victim of discrimination, complainant sought

EEO counseling and, subsequently filed a formal complaint on July

21, 1994. On September 29, 1994, the agency accepted the complaint

for investigation. The agency also advised complainant in that letter,

"if [she] did not receive [her] investigative file within 180 calendar

days from the filing date, [she] may request a hearing."

The record contains a letter dated July 24, 1996, from complainant to the

agency's Senior EEO Complaints Processing Specialist. In the letter,

which was received by the agency's EEO Complaints Processing Center on

July 24, 1996, complainant informed the agency that it had been over

180 days since the date on which she filed her formal EEO complaint.

She therefore requested a hearing before an EEOC administrative judge.

There is no record of a response from the agency regarding complainant's

request.

Instead, by letter dated September 27, 1996, complainant was provided

a copy of the investigative file and informed of her right to request a

hearing before an EEOC administrative judge or alternatively, to receive a

final decision by the agency. The record contains a signed return receipt

from complainant that shows she received this notification on October 2,

1996. There is no indication that complainant responded to this notice.

By letter dated November 22, 1996, the agency's Senior EEO Complaints

Processing Specialist advised the agency's Appeals Clerk that complainant

failed to request a hearing or final decision within the thirty day

time limit required by the notice of September 27, 1996. As such, he

referred the case to the Appeals Clerk for the preparation of a final

agency decision on the record.

Thus, on February 24, 1997, the agency issued a final decision finding

no discrimination. Therein, the agency found complainant failed to

establish a prima facie case of discrimination since she failed to

establish the events occurred as claimed.

Complainant raises no new contentions on appeal. The agency stands on

the record and requests that we affirm its FAD.

Volume 64 Fed. Reg. 37,644, 37,657 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108(f)), provides, in pertinent part,

that within 180 days from the filing of the complaint...the agency

shall provide the complainant with a copy of the investigative file,

and shall notify the complainant that, within 30 days of receipt of the

investigative file, the complainant has the right to request a hearing and

decision from an administrative judge or may request an immediate final

decision pursuant to 1614.110 from the agency with which the complaint

was filed. Furthermore, Volume 64 Fed. Reg. 37,644, 37,657 (1999) (to

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

provides that complainant may request a hearing at any time after 180

days have elapsed from the filing of the complaint.<1>

The record reveals that on July 24, 1996, complainant requested a

hearing before an EEOC administrative judge since 180 days had elapsed

since the filing of her formal EEO complaint of July 21, 1994. Indeed,

over two years had passed since she filed the complaint. The agency was

therefore required to seek the appointment of an administrative judge

at that time. Our regulations do not require complainant to request a

hearing in response to the agency's notification at the conclusion of

the investigation when she has already timely done so.

We therefore VACATE the agency's finding of no discrimination, and REMAND

this matter for a hearing in accordance with the following ORDER, and

the applicable EEOC Regulations.

ORDER

The complaint is remanded to the Hearings Unit of the New Orleans

District Office for scheduling of a hearing in an expeditious manner.

The agency is directed to submit a copy of the complaint file to the

EEOC Hearings Unit within fifteen (15) calendar days of the date this

decision becomes final. The agency shall provide written notification

to the Compliance Officer at the address set forth below that the

complaint file has been transmitted to the Hearings Unit. Thereafter,

the Administrative Judge shall issue a decision on the complaint in

accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final

action in accordance with 29 C.F.R. � 1614.110.

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 (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 (R0400)

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:

May 30, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1Our revised regulations require complainant to request a hearing

from the EEOC District Office indicated in the acknowledgment letter.

However, at the time complainant requested a hearing, she properly sent

her request to the agency.