01A00489_r
08-23-2002
Gary R. Glassman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary R. Glassman v. United States Postal Service
01A00489, 01A03373, 01A03374
August 23, 2002
.
Gary R. Glassman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A00489
01A03373
01A03374
Agency Nos. 4-F-907-0101-99
4-F-907-0063-99
4-F-907-0196-98
DECISION
Complainant filed the captioned appeals with this Commission from
three agency final decisions finding no discrimination regarding the
above referenced EEO complaints. The Commission accepts and consolidates
these appeals.<1> See 29 C.F.R. � 1614.405 and 29 C.F.R. � 1614.606.
Review of the record reveals that the agency accepted and investigated
each captioned complaint. The record also reflects that the agency
attempted, via certified mail, to deliver a copy of the completed
investigative reports, along with notice to complainant of his right
to request a hearing before an EEOC Administrative Judge or agency
final decision, regarding all three complaints. However, the record
reflects that the reports and notices were returned to the agency because
complainant purportedly failed to claim them.
On appeal, complainant argues that he never received delivery,
or even the certified notice of delivery, on the three complaints.
Complainant disputes the agency's claim that he simply avoided receipt.
In this regard, complainant argues that the procedural record otherwise
shows him to be punctual and responsible, and that he had no motive to
avoid receipt. Moreover, complainant argues that he relied on his
representative's assistance in meeting critical processing deadlines,
but that the agency failed to provide his representative with a copy
of the reports or the notices. Because of this omission, complainant
argues that the agency, in effect, denied him due process and his right
to a hearing in all three complaints.<2>
Review of the record confirms that complainant designated a
certain named individual as his official representative in all three
complaints, providing the agency with a full address for this individual.
Furthermore, we find that these notices, as they appear of record, each
denote that a copy was mailed to complainant's official representative.
However, upon review, we find that the record is devoid of any evidence
to demonstrate delivery to complainant's official representative. In this
regard, we again note complainant's contention that neither he nor his
representative received this notice regarding any of the three complaints.
After careful review, we find that the agency provides no evidence
or rationale to support its contention that complainant deliberately
avoided receipt of the notices at issue. Additionally, we find that
the agency knew that complainant had not received the notices, and
made no other subsequent attempt to contact complainant, by mail or
otherwise, regarding his lack of receipt. Moreover, we find that the
record demonstrates that the agency failed to provide complainant's
representative with these notices, as required by 29 C.F.R. � 1614.605(d).
Accordingly, for the reasons set forth above, we find that the agency
improperly issued final decisions in the three captioned complaints,
and we VACATE all three agency final decisions and REMAND the three
captioned complaints back to the agency to provide complainant and his
representative with the notices at issue, as set forth in the ORDER below.
ORDER
The agency is ordered to continue processing the three remanded captioned
complaints in accordance with 29 C.F.R. � 1614.108:
Within twenty (20) calendar days of the date this decision becomes final,
the agency shall acknowledge to the complainant that it has received
the remanded complaints.
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall issue to complainant a copy of the investigative files
regarding all three captioned complaints, and shall notify complainant
of the appropriate rights under 29 C.F.R. � 1614.108, specifically of
his right to request a hearing before an EEOC Administrative Judge or
an agency final decision. If the complainant requests a final decision
without a hearing, the agency shall issue a final decision within twenty
(20) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 23, 2002
__________________
Date
1Review of the record indicates that complaint timely appealed the
agency decisions in #4-F-907-0101-99 and #4-F-907-0063-99 (both dated
September 22, 1999), on October 15, 1999, captioned as #01A00489 and
#01A03373 respectively. The record further shows that the agency issued
a decision in #4-F-907-0196-99 on July 27, 1999, but that complainant did
not receive the letter despite the agency twice attempting certified
delivery. On appeal, complainant indicates that he had no knowledge
of the delivery attempts, and avers that he did not deliberately avoid
receipt as claimed by the agency. Accordingly, because complainant did
not receive a copy of the agency's decision with his appeal rights, and
also because the record reflects that the agency failed to deliver a copy
of the decision to complainant's delegated official representative, we
waive complainant's late filing of October 15, 1999, on appeal # 01A03374.
See 29 C.F.R. � 1614.604(c) and 29 C.F.R. � 1614.605(d).
2We note that the record reflects that complainant first became aware of
the agency's completed processing of the three captioned complaints during
the course of hearing proceedings on a fourth complaint (4-F-907-0062-98).
According to the record, the Administrative Judge (EEOC Hearing
#340-00-3117X), requested that the agency forward the three captioned
complaints for consolidation and a hearing with the fourth complaint.
In response, the agency notified the Administrative Judge that it had
previously issued a final decision on one of the complaints, and that a
final decision on the other two complaints was being issued on the same
date as its response to the Administrative Judge.