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.