01980371
02-29-2000
Osmundo Reyes, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Region), Agency.
Osmundo Reyes v. United States Postal Service
01980371
February 29, 2000
Osmundo Reyes, )
Complainant, )
)
v. ) Appeal No. 01980371
) Agency No. 4F940008497
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western Region), )
Agency. )
____________________________________)
DECISION
Osmundo Reyes (complainant) timely initiated an appeal of a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> Complainant alleged that he was
subjected to discrimination on the bases of his race and national origin
(Filipino) when he was issued a Notice of Removal on February 4, 1997.
The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified at 29 C.F.R. � 1614.405). For the following
reasons, the agency's decision is VACATED and REMANDED.
The issue presented on appeal is whether the agency erroneously denied
complainant his right to a hearing before an EEOC Administrative Judge
(AJ).
The FAD states that complainant received notice of his right to request
a hearing, along with a copy of the investigative file, on July 15,
1997, but that he failed to exercise this right within the prescribed
time frame. The agency therefore issued a FAD, without a hearing,
finding that complainant failed to establish a prima facie case of
discrimination on either of the alleged bases. The agency also noted
that management articulated a legitimate non-discriminatory reason for
its actions, which complainant failed to show was pretextual.
On appeal, however, complainant disputes the agency's assertion that
he failed to timely request a hearing and encloses evidence to support
his claim of a timely hearing request. This evidence includes a copy
of a handwritten hearing request dated August 7, 1997 and a copy of
an envelope postmarked August 7, 1997 and addressed according to the
instructions given in the appeal rights letter.
EEOC Regulation 64 Fed. Reg. 37,661, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108(f)) provides that
a complainant has the right to request a hearing before an AJ within
30 days of receipt of the investigative file. Here, the agency and
complainant acknowledge that the file was received on July 15, 1997.
The 30-day time limit for requesting a hearing expired on August 14, 1997.
Complainant's handwritten request for a hearing postmarked August 7,
1997 was therefore timely and the agency erred by denying complainant
his right to an administrative hearing.
CONCLUSION
Therefore, after a careful review of the record, it is the decision of
the Commission to VACATE the agency's final decision and REMAND this
matter for further processing in accordance with this decision and the
ORDER below.
ORDER
Within thirty (30) days from the date this decision becomes final,
complainant may submit a written request for the appointment of
an administrative judge directly to the EEOC San Francisco District
Office, 901 Market Street, Suite 500, San Francisco, California 94103.
Complainant is advised to submit a copy of this decision with his
submission to the EEOC District Office. Complainant shall send a copy
of the request for a hearing to the agency EEO office.
Within fifteen (15) days of receipt of the request for a hearing,
the agency shall provide a copy of the complaint file to the EEOC and,
if not previously provided, to complainant. See 64 Fed. Reg. 37,644,
37,657 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.108(g)).
If complainant no longer desires a hearing, he may request a final
decision from the agency within thirty (30) days from the date this
decision becomes final. If complainant requests a final decision,
the agency shall issue the final decision with sixty (60) days from the
date the agency receives complainant's request. See 64 Fed. Reg. 37,644,
37,657 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.110(b)).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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:
02/29/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________________
Date
_______________________
1 On 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.