01975954
09-16-1999
Frank Barnes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Frank Barnes, )
Appellant, )
) Appeal No. 01975954
v. ) Agency No. 1F924102896
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision concerning
his complaint of unlawful employment discrimination on the bases of race
(Black), sex (male), reprisal (prior EEO activity) and age (DOB 6/6/56),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Appellant alleges
he was discriminated against when: (1) he was charged with Leave Without
Pay (LWOP) for May 24, 1996, and the error was not corrected by the
following pay period, as promised by management; (2) he was charged
with LWOP for June 3, 4, and 5, 1996; and (3) on June 14, 1996, he
realized the effects of his EAS merit evaluation. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is
VACATED AND REMANDED.
BACKGROUND
The record reveals that during the relevant time, appellant was employed
as a Supervisor, Distribution OPS, EAS-16, at the agency's San Bernardino
Post Office. Believing he was a victim of discrimination, appellant
sought EEO counseling and, subsequently, filed two complaints on August
23, 1996, alleging discrimination as described above. The agency
consolidated appellant's complaints for joint processing. Following an
investigation, the agency informed appellant that he could request an
EEO administrative hearing or a final agency decision (FAD) based on
the existing record. This notification also informed appellant that
he had 30 days from its receipt to request a hearing before an EEOC
Administrative Judge (hereinafter AJ).
The record contains a copy of the return receipt indicating that appellant
received notification of his right to a hearing on March 21, 1997.
In its final decision, issued July 14, 1997, the agency stated that
appellant elected not to exercise either his right to request a hearing
or his right to request a final decision within 30 days from the receipt
of his appeal rights. The agency therefore issued a final decision as
required by 29 C.F.R. � 1614.110.
On appeal, appellant contends that he requested a hearing before an AJ
on April 20, 1997. The agency makes no contentions on appeal and does
not respond to appellant's allegation that he timely requested a hearing.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that complainant has
the right to request a hearing before an AJ within 30 days of receipt
of the investigative file. Here, appellant received the investigative
file on March 21, 1997. He alleges that he timely requested a hearing On
April 20, 1997. In support of this allegation, appellant has provided a
copy of his hearing request attached to a facsimile verification report
dated April 20, 1997, thirty days after March 21, 1997.<1> The agency
does not respond to this evidence on appeal. Therefore, we find that
appellant did timely request a hearing before an AJ.
CONCLUSION
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of this Commission to VACATE the final agency decision
finding that the agency did not discriminate against appellant and to
REMAND the case to the agency in accordance with the ORDER below.
ORDER
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �� 1614.109 and 1614.110 to include a hearing before an
Administrative Judge and the issuance of a second final agency decision.
The agency shall acknowledge to appellant that it has received the
remanded complaint within thirty (30) calendar days of the date this
decision becomes final.
A copy of the agency's letter of acknowledgment to appellant must be
sent to the Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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 29 C.F.R. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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. 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 (Z1092)
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:
Sep. 16, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
(FOR OFO MERIT CASES) (INTERNAL CIRCULATION ONLY)
TO:
CARLTON M. HADDEN
APPEAL NUMBER
01975954
AGENCY NUMBERS
1F924102896
REQUEST NUMBER
HEARING NUMBERS
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Kerry E. Leibig
July 16, 1999
(SUPERVISOR):
Marjorie Borders
(DIVISION DIRECTOR):
DATA SHEET
APPELLANT(S):
Frank Barnes
AGENCY:
United States Postal Service
DECISION:
Vacate and Remand for Hearing
STATUTE(S) ALLEGED:
Title VII, Age Discrimination in Employment Act
BASIS(ES) ALLEGED:
RB, GM, OA, OR
ISSUE(S) ALLEGED:
L2, O1
WHERE DISCRIMINATION IS FOUND (ONLY):
(A) BASIS(ES) FOR FINDING:
(B) ISSUES IN FINDING:
TYPIST/DATE/DISKETTE
kl0 | July 16, 1999 | p:fy99
SPELL CHECK
Yes
TEAM PROOFED
DATE
(CHECK ALL APPLICABLE CODES)
MERIT DECISION
MERIT DECISION (CONTINUED)
X 4A - MERITS DECISION
? 4B - OFO FOUND DISCRIMINATION
LIST BASIS CODES:____________________
LIST ISSUE CODES:____________________
? 4C - OFO FOUND NO DISCRIMINATION
? 4R - OFO FOUND SETTLEMENT BREACH
? 4S - OFO FOUND NO SETTLEMENT BREACH
? 4E - AGENCY FOUND DISCR./BREACH
X 4F - AGENCY FOUND NO DISCR./BREACH
? 4H - OFO AFFIRMED AGENCY
? 4I - OFO REVERSED AGENCY
? 4J - OFO MODIFIED AGENCY:
(NOTE): IF AFFIRMED IN PART AND REVERSED IN
PART, THEN (3L) CODE REQUIRED IF AT LEAST
ONE ISSUE IS REMANDED.
? 3L - OFO REMANDED PART OF AGENCY'S MERITS
DECISION. IF BREACH IS BASIS, USE OF (3L) ALSO
REQUIRES (4I) CODE.
? 4K - AJ FOUND DISCRIMINATION
? 4L - AJ FOUND NO DISCRIMINATION
? 4M - AJ MADE NO FINDING
? 4N - OFO AFFIRMED AJ
? 4O - OFO REVERSED AJ
? 4P - OFO MODIFIED AJ
? 3H - OFO DENIED ATTORNEYS FEES
? 3I - OFO APPROVED ATTORNEYS FEES
? 3J - OFO MODIFIED ATTORNEYS FEES
X 4Q - COMPLIANCE
REQUIRED
1 Moreover, in that April 20, 1997, was a Sunday, the time limit for
requesting a hearing should have been extended to Monday, April 21, 1997.