Robert Springfield, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W Areas), Agency.

Equal Employment Opportunity CommissionOct 11, 2000
01a00231 (E.E.O.C. Oct. 11, 2000)

01a00231

10-11-2000

Robert Springfield, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W Areas), Agency.


Robert Springfield v. United States Postal Service

01A00231

October 11, 2000

.

Robert Springfield,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service

(S.E./S.W Areas),

Agency.

Appeal No. 01A00231

Agency No. 1H-366-0022-98

DECISION

Complainant timely initiated an appeal from a final agency decision

concerning his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> The

appeal is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges

that he was discriminated against on the bases of race (Caucasian), sex

(male), and age (49), when, on August 29, 1998, he was not awarded the

Maintenance Control Clerk position, at the Mobile, Alabama facility.

For the following reasons, the Commission VACATES the agency's final

decision and REMANDS the complaint for a hearing.

The record reveals that during the relevant time, complainant was

employed as a Part Time Flexible MTS Driver at the agency's Mobile,

Alabama facility. Believing he was a victim of discrimination,

complainant sought EEO counseling and subsequently, filed a formal

complaint on November 20, 1998. At the conclusion of the investigation,

complainant was provided a copy of the investigative file and informed

of his right to request a hearing before an EEOC Administrative Judge

or alternatively, to receive a final decision by the agency.

On December 9, 1999, the agency issued a final decision. Therein,

the agency stated the following:

Per your June 9, 1999 request for a hearing, your case file was forwarded

to the EEOC, Birmingham District Office, Birmingham, Alabama. However,

prior to the onset of the hearing, you withdrew your request, and asked

for a final agency decision. Hence, in accordance with EEOC Regulation

29 C.F.R. � 1614.110, et seq., this final decision is being issued.

In its final decision, the agency summarily concluded that complainant

failed to establish that the agency's reasons for its actions were a

pretext for discrimination.

On appeal, complainant contends that he was denied due process, �despite

the agency's allegations that he withdrew his [hearing] request before

the onset of the hearing.� Complainant requests that we remand the

complaint back to the agency for further processing, including a hearing.

The agency requests that we affirm its final decision.

Complainant has the right to request a hearing before an administrative

judge (AJ) within thirty (30) days of receipt of the investigative file.

See 29 C.F.R. � 1614.108(f). The agency conceded in its final decision

that complainant timely requested a hearing, yet later withdrew his

request and asked for an immediate final decision. Complainant claims

that he was �denied due process� and raises a question as to whether he

withdrew his request for a hearing. Upon review of the record, we find

no evidence to support the agency's contention that complainant withdrew

his request for a hearing.<2> In light of the agency's failure to provide

us with documentation necessary to confirm its contention, we will remand

this matter back for a hearing in order to preserve complainant's request

for a hearing before an EEOC Administrative Judge.

We therefore vacate the agency's finding of no discrimination, and remand

this matter for a hearing in accordance with the following ORDER, and

the applicable EEOC Regulations.

ORDER

The complaint is remanded to the Hearings Unit of the Birmingham District

Office for scheduling of a hearing in an expeditious manner. The agency

is directed to submit a copy of the complaint file to the EEOC Hearings

Unit within fifteen (15) calendar days of the date this decision becomes

final. The agency shall provide written notification to the Compliance

Officer at the address set forth below that the complaint file has been

transmitted to the Hearings Unit. Thereafter, the Administrative Judge

shall issue a decision on the complaint in accordance with 29 C.F.R. �

1614.109 and the agency shall issue a final action in accordance with

29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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 (M0900)

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

October 11, 2000

__________________

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.

2We also note that the record does not contain complainant's request for

a hearing. We do not find this determinative however, since the agency

conceded in its final decision that complainant requested a hearing.