Jody L. Miller, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 3, 2000
01a00306 (E.E.O.C. Apr. 3, 2000)

01a00306

04-03-2000

Jody L. Miller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Jody L. Miller, )

Complainant, )

)

v. ) Appeal No. 01A00306

) Agency No. 1F-927-0011-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal of a final agency decision (FAD)

concerning her complaint of unlawful employment discrimination on the

bases of race (Black), sex (female), physical disability (back injury)

and reprisal (prior EEO activity), in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., and Section 501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).<1> For the following reasons,

the agency's decision is VACATED, and the complaint is hereby REMANDED

for further processing in accordance with the Order below.

The issue on appeal is whether complainant submitted a timely request for

a hearing before an EEOC Administrative Judge (AJ). The record reveals

that on June 26, 1999, complainant received a copy of the investigative

file and the appropriate notice of right to request a hearing before an

AJ. Under our regulations, complainant had thirty (30) days from receipt

of the investigative file to request a hearing, making July 26, 1999 the

last day on which she could do so. In its FAD, the agency stated that

complainant had failed to respond in any manner to the notice of rights.

On appeal, complainant submits photocopies of a request for hearing in

agency case no. 1F-927-0011-99, dated July 13, 1999, as well as a receipt

for certified mail dated July 13, 1999, and a return receipt indicating

receipt by the agency on July 14, 1999. The agency does not respond to

this evidence in its appellate brief, which addresses only the merits

of complainant's claims and requests that the Commission affirm the FAD.

However, the record contains correspondence regarding this issue between

the parties after the FAD was issued, including a letter dated September

27, 1999 from the Manager, EEO Complaints Processing, to complainant, in

which the agency takes the position that complainant's hearing request

received on July 14, 1999, was a duplicate of an earlier request for

hearing which complainant submitted in agency case no. 1F-927-003-99.

Attached to the agency's letter is a copy of a hearing request dated

July 13, 1999, stamped "received" July 14, 1999, and referencing agency

case no. 1F-927-003-99, as well as a copy of another hearing request

which is identical in all respects except that it bears the date May 10,

1999 and is stamped "received" May 12, 1999.

The agency does not dispute that it received complainant's May 12, 1999

hearing request in agency case no. 1F-927-003-99 in timely fashion, and

that case file was forwarded to an AJ for a hearing. According to the

agency file, by letter dated September 17, 1999, an EEOC Administrative

Judge in the Los Angeles District Office advised the agency that he

deemed complainant's three pending cases to be related, and he requested

that the agency forward the files in the instant case (1F-927-0011-99)

and agency case no. 1F- 927-0042-99, to be consolidated for hearing

with case no. 1F-927-003-99 pending before him. The agency responded

by letter dated September 28, 1999, advising the AJ that the instant

case had been closed by FAD issued September 9, 1999.

The evidence is in equipoise regarding whether or not complainant's

request for hearing, received by the agency on July 14, 1999, contained

the case caption 1F-927-003-99 or 1F-927-0011-99, the parties having

each submitted different copies of the alleged request. Nevertheless,

we find that even accepting the agency's version of the relevant facts,

in the circumstances of this particular case, the agency should have

construed the complainant's letter as a request for a hearing in the

instant case, or alternatively contacted the complainant to inquire

about the intent of her correspondence rather than assuming that it was a

"duplicate" and disregarding it. In reaching this conclusion, we rely in

particular on the fact that the agency was aware complainant had already

requested a hearing in case no. 1F-927-003-99 two months earlier, that

hearing request had already been processed, the instant hearing request

contained a different date which was two months later than the first, and

the agency was aware it had sent complainant the record of investigation

and notice of right to request a hearing in the instant case approximately

two weeks before receiving the hearing request in question.

Accordingly, after a careful review of the record, it is the decision

of the Commission to VACATE the agency's final decision and REMAND the

complaint for further processing in accordance with this decision and

the ORDER set forth below.

ORDER

Within fifteen (15) days of the date this decision becomes final, the

agency shall (1) provide a copy of the complaint file to the EEOC Los

Angeles District Office ("District Office"), together with a copy of the

instant decision, (2) request in writing that the District Office assign

the complaint to an Administrative Judge in accordance with this decision,

and (3) advise the District Office in writing of the pendency and status

of complainant's other complaints, if any. See 64 Fed. Reg. 37,644,

37,657 (1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.108(g)).

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

April 3, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised

regulations governing the EEOC's federal sector complaint process

went into effect. These regulations apply to all federal sector

EEO complaints pending at any stage in the administrative process.

Consequently, the Commission will apply the revised regulations found

at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.