0120080737
10-22-2009
Gilbert P. Ortiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Gilbert P. Ortiz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120080737
Hearing No. 440-2007-00202X
Agency No. 1J-602-0003-07
DECISION
On November 26, 2007, complainant filed an appeal from the agency's
October 22, 2007 final decision (FAD) concerning his equal employment
opportunity (EEO) complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The appeal is deemed timely and is
accepted pursuant to 29 C.F.R. � 1614.405(a). For the following reasons,
the Commission VACATES the agency's final decision.
ISSUE PRESENTED
Whether complainant's hearing request should be reinstated because
erroneous information was provided to the EEOC Administrative Judge (AJ)
that resulted in complainant's hearing request being dismissed.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as an Electronic Technician, at the Palatine Processing and Distribution
Center (P&DC), in Palatine, Illinois. On January 17, 2007, complainant
filed an EEO complaint alleging that he was discriminated against on
the basis of reprisal for prior protected EEO activity [under Title VII]
when, on or about October 11, 2006, and ongoing, he was subjected to a
hostile work environment when an employee who had (allegedly) previously
assaulted him was allowed to supervise again.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). Complainant timely
requested a hearing. The record shows that on May 24, 2007, the AJ
issued an Acknowledgement and Scheduling Order that, among other things,
directed the parties to file pre-hearing submissions within 75 days of
the date of the Order, that is, no later than August 7, 2007. The Order
specified the particular form for such submissions. On August 21, 2007,
the AJ issued an Order to complainant to show good cause, by no later
than August 31, 2007, for his alleged failure to comply with the Order
governing pre-hearing submissions. On August 29, 2007, complainant
filed a response to the Show Cause Order asserting (in error) that he
had failed to comply with the Order because his representative forgot
to do it (that is, had memory lapses). Consequently, on September 5,
2007, the AJ dismissed the hearing request, and remanded the complaint to
the Postal Service with instructions to issue a final agency decision.
Consequently, the agency issued a final decision (FAD) pursuant to 29
C.F.R. � 1614.110(b), finding no discrimination.
CONTENTIONS ON APPEAL
On appeal, complainant states that his hearing was "dismissed" because the
agency attorney intentionally lied by stating that he had not received
complainant's submission of documents. Complainant states that the
agency's attorney acted out of retaliation because in another case in
which the same attorney was representing the agency, the complainant
(who had the same representative) prevailed. Complainant states that
this act of retaliation was directed against his representatives, but
it nevertheless affected complainant negatively. He attaches to his
appeal a document indicating that his submission was timely delivered
to the agency's Law Department in Chicago, Illinois, and signed for by
a named individual, on July 26, 2007. He further explains that when
he first was informed that the agency had not received his submission,
he checked with his Representative, who indicated that he thought he
had filed the submission, but must not have due to a memory lapse.
Complainant states that accordingly, he responded to the Show Cause
by providing that explanation for failing to comply. He now insists,
however, that the submission was timely filed, and that he has evidence
to substantiate his contention.
In reply, the agency states that it was not an abuse of discretion for
the AJ to remand the case to the Postal Service because of complainant's
failure to comply with the order governing pre-hearing submissions.
The agency notes that an AJ must be able to compel compliance with
his/her orders in order to facilitate the hearing process. The agency
further requests that the Commission affirm the FAD on the merits.
ANALYSIS AND FINDINGS
A review of the record reveals that the AJ cancelled the hearing based
on information that had been provided to him that complainant had
failed to comply with his Order concerning pre-hearing submissions.
Complainant, however, has presented evidence, unrebutted by the agency,
that despite what he indicated in response to the Show Cause Order, he
had in fact complied with the Order. Complainant's evidence shows that
his submission was timely delivered to the agency's Law Department in
Chicago, Illinois, on July 26, 2007, and signed for by a named individual.
Although it is unclear why the AJ was provided incorrect information or
what efforts, if any, were made to inform the AJ that he was provided
incorrect information, the result, however, is clear - complainant's
hearing request was improperly dismissed. Accordingly, we find that the
appropriate remedy in this case is to reinstate complainant's hearing
request.
CONCLUSION
In this case, we find, for the reasons stated above, that the cancellation
of the hearing was improper; therefore, the Commission VACATES the
agency's final order and REMANDS the matter for a hearing in accordance
with this decision and the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Chicago District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
_____10/22/09_____________
Date
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0120080737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120080737