01A02654
08-06-2002
Larry G. Livingston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry G. Livingston v. United States Postal Service
01A02654
08-06-02
.
Larry G. Livingston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02654
Agency No. 1H-382-0001-98
Hearing No. 250-99-8011X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his complaint of unlawful 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 accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission vacates
and remands the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a Motor Vehicle Operator, PS-5, at the agency's Clinton,
Tennessee facility. Complainant sought EEO counseling and, subsequently,
filed a formal complaint on December 3, 1997, alleging that he was
discriminated against on the basis of reprisal for prior EEO activity
when, on October 4, 1997, he was not selected for the position of
Supervisor, Transportation Operations, EAS-16.
At the conclusion of the investigation, complainant was provided a copy
of the investigative file and informed of his right to request a hearing
before an EEOC Administrative Judge (AJ) or alternatively, to receive a
final decision by the agency. Complainant requested a hearing before
an AJ and complainant's complaint was forwarded to the Memphis District
EEO Office. However, on October 15, 1999, finding that more than 180 days
had elapsed since complainant filed his complaint, the AJ remanded the
complaint to the agency relying on �complainant's request to pursue his
claims in federal court.� Considering that complainant had not filed a
civil action as of January 13, 2000, the agency issued a cursory decision
on the merits of the complaint, finding no discrimination.
In its final decision, the agency merely concluded, with no analysis,
that even if complainant had established a prima facie case of reprisal
discrimination, that the agency proffered legitimate, nondiscriminatory
reasons for its actions, which complainant failed to establish were
pretext for intentional discrimination. The final decision concluded
that complainant failed to demonstrate by a preponderance of the evidence
that he was discriminated against under any of his alleged basis.
On appeal, it appears that complainant erroneously faxed his request
to file a civil suit in federal district court to the AJ. Nonetheless,
the record is devoid of any evidence showing that complainant has filed
a civil action with regard to the claims raised in this complaint and
therefore, we find that the agency's decision to issue a decision
on the merits was proper. However, after a thorough review of the
record, we find that the evidence of record is insufficient to allow a
determination on the merits of complainant's claims of discrimination
under complainant's alleged basis. Our regulations and the EEOC
Management Directive (MD) 110, November 9, 1999 for 29 C.F.R. Part 1614
require agencies to develop a complete and impartial factual record.
See 29 C.F.R. � 1614.108(b) and EEOC Management Directive (MD) 110,
November 9, 1999, Chapter 6, page 6-1. Other information which would
buttress or rebut the agency's stated reasons, such as the Responsible
Management Official's rationale for his selections for the positions
at issue, besides the broad statement that he chose the best qualified
candidates, was not included in the record. See Tyndall v. Veterans
Administration, EEOC Appeal No. 01944524 (September 20, 1995).
We therefore vacate the agency's finding of no discrimination, and
remand this matter for a supplemental investigation in accordance with
the following Order, and the applicable EEOC Regulations.
ORDER
The agency is ordered to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall ensure that the investigator obtains information
concerning the Responsible Management Official's selection process.
The investigator shall obtain an affidavit from the Responsible Management
Official which specifically explains why he chose the selectee over
the complainant, including what factors went into making his selection
decision.
2. The agency shall ensure that the investigator obtains from the agency
copies of the promotion packages of the selectees included on the list and
for complainant. Upon obtaining such information, the investigator shall
review and summarize each selectee's and complainant's qualifications
which were relevant to the selection process.
3. The agency shall ensure that the investigator obtain any other
affidavits, records or statistics not specifically requested in this
Order, and not inconsistent with this opinion, which may be relevant in
determining the veracity of complainant's complaint allegations.
4. The agency shall ensure that the investigator complete a supplemental
investigation within one-hundred and twenty (120) calendar days of
the date this decision becomes final. Thereafter, the agency shall
provide the complainant, within thirty (30) calendar days from the date
the agency completes the supplemental investigation, an opportunity to
respond to the supplemental investigative report. The agency shall then
take any action appropriate and consistent with complainant's response,
and issue a new final agency decision within thirty (30) calendar days of
complainant's response or, if complainant fails to respond, within thirty
(30) calendar days following the last day complainant would have been
permitted to respond. Copies of the completed supplemental investigation
and new final agency decision must be submitted 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
____08-06-02______________
Date