01A34803_r
12-12-2003
Leonard Arellano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leonard Arellano v. United States Postal Service
01A34803
December 12, 2003
.
Leonard Arellano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34803
Agency No. 1F-937-0032-03
DECISION
On July 9, 2003, complainant filed a formal EEO complaint wherein he
claimed that he had been discriminated against on the bases of his
race (Filipino), color (brown), religion (Catholic), national origin
(Philippines), sex (male), and disability (right hand and right foot),
when on February 21, 2003, he was denied accommodation as he received
no response to his request for a transfer/reassignment to an agency
installation closer to his home.
On July 29, 2003, the agency issued a final action dismissing
complainant's complaint pursuant to 29 C.F.R. �1614.106(c), which
states that, �[a] complaint must contain a signed statement from the
person claiming to be aggrieved or that person's attorney.� The agency
determined that complainant's complaint was signed by complainant's
non-attorney representative. The agency noted that complainant was
provided with a notice of right to file individual complaint that stated
in part, �The complaint must be in writing, signed by you.� The agency
further noted that complainant was provided with an EEO informational
booklet that included the following:
To file a formal complaint, you must put your complaint in writing
and sign it. Your attorney, if you are represented by one, may sign
it instead. If you are represented by someone who is not an attorney,
you must sign the complaint yourself and designate who your representative
is in writing.
On appeal, complainant contends that the Commission's Regulations do
not state that only an attorney may sign for him.
Complainant's representative does not appear to be an attorney.
Complainant does not claim that his representative is an attorney.
In such circumstances, complainant is clearly required to sign
the complaint. See 29 C.F.R. � 1614.106(c). Although complainant's
non-attorney representative has signed the instant complaint, complainant
has not signed the instant complaint. There is no indication that after
the complaint was filed, the agency requested that complainant sign the
complaint. The Commission finds that the agency should have made such a
request before dismissing the complaint. The Commission shall remand the
matter so that the agency may request that complainant sign the complaint.
If complainant refuses to sign the complaint, then the agency may dismiss
the complaint for failure to comply with 29 C.F.R. � 1614.106(c)
Accordingly, the agency's decision is hereby VACATED. The complaint is
hereby REMANDED for further processing pursuant to the Order below.
ORDER
The agency shall contact complainant and provide him with the opportunity
to sign the complaint. Complainant will have 10 calendar days from the
date that he is contacted by the agency in which to sign his formal
complaint. Within 30 calendar days of the date this decision becomes
final, the agency shall issue a notice of acceptance of the complaint
or shall issue a final action with regard to this complaint.
A copy of the agency's new decision or letter of acceptance 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
December 12, 2003
__________________
Date