Minh T. Giang, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 16, 1999
01991896 (E.E.O.C. Nov. 16, 1999)

01991896

11-16-1999

Minh T. Giang, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Minh T. Giang, )

Appellant, )

)

v. ) Appeal No. 01991896

) Agency No. 1D-231-0153-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On January 6, 1999, appellant filed an appeal from the agency's December

4, 1998 final decision (FAD), which declined to add an additional

basis of alleged discrimination or expand the issues in her formal EEO

complaint.<1> For the reasons set forth below, the Commission sets

aside the FAD.

The Commission finds the agency has not met its burden of submitting an

adequate record in this case. Henry v. U.S. Postal Service, EEOC Request

No. 05940897 (May 18, 1995); Hines v. U.S. Postal Service, EEOC Appeal

No. 01923566 (May 13, 1993). Instead, the Commission finds the agency

submitted a letter, dated February 18, 1999, inaccurately advising the

Commission that no FAD had been issued in this case and that, therefore,

appellant's appeal was premature.

The agency's December 4, 1998 final decision is hereby VACATED,

and appellant's complaint is hereby REMANDED for further processing

consistent with this decision and applicable regulations. The parties

are advised that the Commission's decision in this case is not a decision

on the merits of appellant's complaint. The agency shall comply with

the Commission's ORDER set forth below.

ORDER

The agency is ORDERED to ensure the completion of the following actions:

1. The agency shall obtain and provide the Commission, appellant, and

appellant's representative, if any, any and all relevant documents in

the present case, under agency case number 1D-231-0153-98.

2. All relevant documents shall include, but not be limited to,

appellant's request for counseling, the EEO Counselor's report, and

appellant's formal EEO complaint.

3. Thereafter, the agency shall issue a new final agency decision,

with appeal rights to the Commission, defining all of appellant's bases

of alleged discrimination, as well as agency actions complained of.

4. The new final agency decision shall identify with specificity those

allegations it has accepted for processing, if any; and those allegations

dismissed, if any. The new final agency decision shall not dismiss any

allegations de facto by omitting them.

5. The new final agency decision shall identify with specificity the

legal grounds, evidence, and documentation relied on, if any, regarding

any and all bases of alleged discrimination and allegations of agency

actions complained of, which the new final agency decision has dismissed.

6. The production of all Ordered documents, and the issuance of the

new final agency decision, shall be completed within sixty (60) calendar

days of the date the Commission's decision becomes final in this matter.

A copy of the new final agency decision, with all relevant documents,

must be submitted to the Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant 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. �� 1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that you

have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

November 16, 1999

DATE Carlton M. Hadden, Acting Director Office of Federal

Operations

1On appeal, appellant averred that she received the FAD on December

8, 1998. In the absence of evidence to the contrary, the Commission

accepts her appeal as timely. 29 C.F.R. ��1614.402 and

.604, in pertinent parts.