Rickyv.Bryant, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 22, 2000
01986514 (E.E.O.C. Sep. 22, 2000)

01986514

09-22-2000

Ricky V. Bryant, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ricky V. Bryant v. United States Postal Service

01986514

09-22-00

.

Ricky V. Bryant,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01986514

Agency No. 4I-680-0002-98

DECISION

INTRODUCTION

On August 30, 1998, Ricky V. Bryant (the complainant) timely filed an

appeal with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD) dated August 11, 1998, 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., the Age Discrimination in Employment Act of 1967, as amended,

29 U.S.C. � 621 et seq. and � 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.<1> The Commission hereby accepts

the appeal in accordance with 29 C.F.R. � 1614.405.

ISSUE PRESENTED

The issue on appeal is whether the agency properly rejected the

complainant's request for a hearing when it issued a final agency decision

on the record.

BACKGROUND

Complainant initiated EEO Counseling on July 9, 1997. He filed a formal

complaint on November 12, 1997, alleging discrimination on the bases of

race (Black), color (black), age (DOB: 9/14/56), physical disability (high

blood pressure and headaches), mental disability (depression/anxiety), and

reprisal (prior EEO activity). He claimed he was discriminated against

when: 1) he was told that he must change crafts or face termination,

and 2) he was given a Notice of Termination. The agency accepted the

complaint for investigation and processing. At the conclusion of the

investigation, the agency issued a copy of its investigative report and

notified complainant of his right to request an administrative hearing.

After complainant allegedly failed to request a hearing within the 30-day

period specified in the regulations, the agency issued its FAD on August

11, 1998.

This appeal followed. In his appeal, complainant contended that he

had timely requested a hearing before an EEOC Administrative Judge

(AJ) and that the agency had improperly issued a FAD on the record.

He claimed to have received the investigative file and notice of his

right to request a hearing on July 1, 1998, and to have requested a

hearing in a letter postmarked July 29, 1998. He also claimed that he

had additionally requested a hearing before the investigative file had

been issued to him, on June 3, 1998, because 180 days had passed since

he had filed his complaint. He included a photocopy of the letter and

the envelope in which it was sent, showing a postmark of June 3, 1998.

He requested that the case be remanded to the agency for a hearing to be

held. The agency did not respond to complainant's contentions on appeal.

Contained in the record submitted by the agency on notice of the appeal is

a copy of the return receipt card indicating that the investigative file

and notice of right to request a hearing was received at complainant's

address on June 26, 1998.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.108(g) provides that at any time after

180 days have elapsed from the filing of the complaint, the complainant

may request a hearing by submitting a written request for a hearing

directly to the EEOC office indicated in the agency's acknowledgment

letter. The complainant shall send a copy of the request for a hearing

to the agency EEO office. Within 15 days of receipt of the request for

a hearing, the agency shall provide a copy of the complaint file to EEOC

and, if not previously provided, to the complainant.

Under the regulations in effect at the time, however, 29 C.F.R. �

1614.108(f) specified that within 180 days from the filing of

the complaint, the agency shall notify the complainant that the

investigation has been completed, shall provide complainant with a

copy of the investigative file and shall notify the complainant that,

within 30 days of receipt of the investigative file, the complainant has

the right to request a hearing before an administrative judge. In the

absence of the required notice, the complainant may request a hearing

at any time after 180 days has elapsed from the filing of the complaint.

The request was to be sent to the agency.

Complainant provided on appeal, a copy of the letter he sent to the agency

on June 3, 1998, requesting a hearing because 180 days had elapsed since

he had filed his complaint on November 12, 1997. The letter was addressed

to the EEO Counselor who counseled complainant, and was sent to the EEO

Counselor's business address as listed in the EEO Counselor's Report.

The agency did not dispute complainant's contention. Therefore, we

find that complainant did timely request a hearing before an AJ, and

that the agency improperly issued a FAD on the record.

CONCLUSION

Accordingly, it is the decision of the Commission VACATE the final

agency decision finding that the agency did not discriminate against the

complainant, and to REMAND the case to the agency for further processing

in accordance with this decision and the proper regulations.

ORDER

(1) Within thirty (30) days from the date this decision becomes final,

the agency is ordered to submit a written request for the appointment of

an administrative judge directly to the EEOC St. Louis District Office,

1222 Spruce Street, Room 8.100, St. Louis, Missouri 63108. The agency

should submit a copy of this decision with its submission to the EEOC

District Office.

(2) Accompanying the request for the appointment of the administrative

judge, the agency shall provide a copy of the complaint file to the

EEOC and, if not previously provided, to complainant. See 29 C.F.R. �

1614.108(g).

A copy of the agency's letter transmitting the complaint file to the EEOC

District Office must be sent to the Compliance Officer, as referenced

below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0800)

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)(Supp. V 1993). 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 (M0800)

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION

(R0400)

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

___09-22-00_______________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.