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.