01a00231
10-11-2000
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.