0720070067
02-11-2011
Ronald W. Mathis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Ronald W. Mathis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0720070067
Hearing No. 510-2006-00203X
Agency No. 4H-335-0062-06
DISMISSAL OF APPEAL
Complainant and the Agency filed appeals of the Agency's final order
concerning Complainant's equal employment opportunity (EEO) complaint
alleging 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. The appeals were accepted pursuant to 29 C.F.R. � 1614.405 and
consolidated.1 For the following reasons, the Commission DISMISSES the
Agency's appeal.
BACKGROUND
At the time of the events giving rise to this complaint, Complainant
worked as a Modified Distribution Window & Mark-up Clerk at the Sarasota
Post Office in Sarasota, Florida. Complainant filed an EEO complaint
dated March 19, 2006, alleging that he was discriminated against on the
basis of religion (Seventh Day Adventist) when: (1) on December 17 and
24, 2005, he was not provided with a religious accommodation when he
was scheduled to work on his off days that fell on the Sabbath; and (2)
he was subsequently issued a Notice of Suspension for failing to report
as scheduled.2
At the conclusion of the investigation, Complainant was provided
with a copy of the report of investigation and notice of his right to
request a hearing before an AJ. Complainant timely requested a hearing.
After both parties submitted motions for a decision without a hearing,
the AJ assigned to the case issued a decision without a hearing on May
9, 2007. The AJ's decision found that the Agency had discriminated
against Complainant based on his religion. With respect to remedies,
the AJ did not award Complainant compensatory damages because Complainant
failed to request compensatory damages during the complaint process or
the investigation. However, the AJ ordered the Agency to expunge the
seven-day suspension from all personnel files, including but not limited
to his official personnel file; pay complainant $14,114.74 in attorney's
fees and costs; provide EEO training on Title VII to the Manager and
the Postmaster; and post a notice of the finding of discrimination.
On June 19, 2007, through his representative, Complainant filed an appeal
with the Commission arguing that the Agency failed to issue its final
order within 40-days of receiving the AJ's decision. Complainant argued
that he is entitled to relief and requested that the Agency be directed
to comply in full with the AJ's decision.
On July 2, 2007, the Agency issued a final order rejecting the AJ's
finding that Complainant proved that he was subjected to discrimination
based on his religion as alleged.
CONTENTIONS ON APPEAL
On appeal, the Agency argues that Complainant's appeal should be dismissed
as premature because he filed an appeal before the Agency issued its
final order.3 The Agency argues that its final order was issued in a
timely manner. The Agency also argues that the AJ erred in issuing a
decision without a hearing because the AJ failed to properly address
whether the Agency had established an undue hardship, and there is a
genuine issue of material fact as to whether offering Complainant his
requested accommodation would have caused an undue hardship on the Agency.
Finally, the Agency argues that Complainant is not entitled to an award
of attorney's fees.
Complainant argues that the Agency failed to issue its final order within
forty days of receipt of the AJ's decision, and the Agency's appeal should
therefore be dismissed. Complainant argues that the AJ's decision became
the Agency's final order, and he is entitled to full relief, including the
AJ's award of attorney's fees. We note that Complainant states the same
arguments on appeal that he states in response to the Agency's appeal.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.110(a), an agency is required to take final
action on a complaint by issuing a final order within 40 days of receipt
of the hearing file and the AJ's decision. If an agency decides not to
fully implement the decision of an AJ, the agency must issue a final order
and simultaneously file an appeal with the Commission in accordance with
29 C.F.R. � 1614.403. Id. If the agency does not issue a final order
and file an appeal simultaneously with the issuance of the order, the AJ's
decision will be deemed ratified by the agency upon the expiration of the
agency's 40-day period for accepting or not accepting the AJ's decision.
See 29 C.F.R. � 1614.109(i); Equal Employment Opportunity Commission
Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chapter 9,
� III(B)(1) n.4 (Nov. 9, 1999).
Upon review, we find that the Agency issued its final order and filed
its appeal in an untimely manner. The record reflects that the AJ mailed
the Agency and Complainant a copy of her Order Entering Judgment on May
14, 2007. The AJ's transmittal included a certificate of service stating
that "[f]or timeliness purposes, it shall be presumed that the parties
received the foregoing ORDER within five calendar days after the date it
was sent by regular mail." The Agency is presumed to have received the
AJ's transmittal on May 19, 2007.4 Therefore, the Agency should have
issued its final order and filed its appeal on June 28, 2007. However,
the Agency did not issue its final order and file a simultaneous appeal
until July 2, 2007, four days after expiration of the 40-day limitation
set forth in 29 C.F.R. � 1614.110(a).
On appeal, the Agency argues that it received the AJ's transmittal
on May 24, 2007, and that the Agency's July 2, 2007, final order and
appeal were timely. However, the Agency provided no evidence that the
AJ's transmittal was received on May 24, 2007. Moreover, the Agency
filed a Motion for Summary Dismissal of Complainant's Appeal on June
20, 2007, acknowledging that "the Agency has until June 28, 2007 to
appeal the decision of the [AJ]." The Agency has not provided adequate
justification to warrant an extension or waiver of the applicable time
limit in this case. The Commission has held that the agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness. See Williams v. Dep't of Defense, EEOC
Request No. 05920506 (Aug. 25, 1992). Additionally, "the agency has the
burden of providing evidence and/or proof to support its final decision."
Ericson vs. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993);
see Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992).
Because the Agency's appeal was untimely and without justification for
an extension of the time limitations period, we find that it failed to
take final action during the 40-day period set forth in the Commission's
regulations at 29 C.F.R. � 1614.110(a). Accordingly, the AJ's decision
became the final action of the Agency on May 19, 2007. See McCue
v. U.S. Postal Serv., EEOC Appeal No. 01A13411 (Aug. 8, 2002). Further,
because the Agency's failure to timely file its appeal constituted a
failure to take action during the 40-day period, the Agency cannot now
challenge any aspect of the AJ's decision. Id. The Commission will
neither address the merits of the AJ's decision nor make a determination
as to the appropriateness of the remedy provided.
CONCLUSION
Therefore, after a careful review of the record, the Agency's appeal
is DISMISSED. The agency is directed to provide the relief as described
in the ORDER below.
ORDER
Within sixty (60) calendar days of the date of this decision, and to
the extent it has not already done so, the Agency is ORDERED to take
the following remedial actions:
(1) Remit to Complainant one week's back pay (with interest if applicable,
and taking into account appropriate overtime, night pay differential, and
benefits) for work he missed due to the Agency's discriminatory actions;
(2) Expunge any and all references to the seven (7) day suspension issued
from Complainant's official and unofficial personnel files;
(3) Remit to Complainant $14,114.74 in attorney's fees and costs; and
(4) Provide the responsible management officials with a minimum of eight
(8) hours of EEO training on Title VII, with particular emphasis on the
Agency's obligations with respect to the accommodation of employees'
religious beliefs.
The Agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation, including
evidence that the corrective action has been implemented.
POSTING ORDER (G0610)
The Agency is ordered to post at its Sarasota Post Office copies of
the attached notice. Copies of the notice, after being signed by the
Agency's duly authorized representative, shall be posted by the Agency
within thirty (30) calendar days of the date this decision becomes final,
and shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees are customarily
posted. The Agency shall take reasonable steps to ensure that said
notices are not altered, defaced, or covered by any other material.
The original signed notice is to be submitted to the Compliance Officer
at the address cited in the paragraph entitled "Implementation of the
Commission's Decision," within ten (10) calendar days of the expiration
of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29
C.F.R. � 1614.501(e)(1)(iii)), he is entitled to an award of reasonable
attorney's fees incurred in the processing of the complaint. 29 C.F.R. �
1614.501(e). The award of attorney's fees shall be paid by the Agency.
The attorney shall submit a verified statement of fees to the Agency --
not to the Equal Employment Opportunity Commission, Office of Federal
Operations -- within thirty (30) calendar days of this decision becoming
final. The Agency shall then process the claim for attorney's fees in
accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M0610)
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), at 9-18 (Nov. 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 11, 2011
Date
1 Complainant's appeal was initially docketed under EEOC Appeal
No. 0120073105, and the Agency's appeal was subsequently docketed under
EEOC Appeal No. 0720070067. Appeal No. 0120073105 was administratively
closed, and the matter considered under Appeal No. 0720070067.
2 Complainant filed a grievance regarding the January 19, 2006, suspension
that resulted in the removal of the suspension from Complainant's
records.
3 Although we agree that Complainant's appeal was premature at the time of
filing, the Agency issued its final decision and filed its appeal while
Complainant's appeal was pending before the Commission. As a result,
we find that Complainant's appeal is currently ripe for review.
4 The Commission notes that, where certified mail/return receipt is not
used by an AJ, an agency is generally deemed to have received the decision
five days after it was sent. EEO-MD-110, 9-2 n.2. ("If service of the
[AJ's] decision was by mail without the use of certified mail/return
receipt, the agency may add five days to the date that the final action
is due. This rule, adding five days to the date of service, shall apply
in all instances where the party being served has the right to take an
action within a period of time following such service, except where the
serving party uses certified mail/return receipt and can establish the
date of actual receipt.").
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0720070067
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720070067