01A13650
09-04-2002
Stanley D. Chronister, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Stanley D. Chronister v. United States Postal Service
01A13650
September 4, 2002
.
Stanley D. Chronister,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A13650
Agency No. 4E-840-0076-98
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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission vacates and remands the agency's
final decision.
The record reveals that during the relevant time, complainant was employed
as a Letter Carrier at the agency's West Jordan Utah Post Office facility.
Complainant sought EEO counseling and, subsequently, filed a formal
complaint on April 17, 1998 alleging that he was discriminated against
on the bases of age (D.O.B. 7/15/46) and reprisal for prior EEO activity
when:
on January 14, 1998, management told him that the reason he did not
get promoted was because he was too old;
he was scheduled for a fitness-for-duty examination on January 22, 26,
and 27, 1998;
management made false accusations concerning customer complaints;
on January 23, 1998, he was advised that he would be placed on
administrative leave; and
he was harassed by his supervisor and management.
The record indicates that on July 10, 1998 (84 days after the formal
complaint was filed and prior to the commencement of the investigation)
the agency placed the complaint in abeyance pursuant to 29 C.F.R. �
1614.301(c) due to the fact that a grievance was being processed that
covered the same matter raised in the complaint. On August 19, 1999,
while the complaint was still in abeyance, complainant's representative
submitted to the agency a written request for a hearing pursuant to 29
C.F.R. � 1614.108(f). The agency failed to respond to said request.
On July 12, 1999, the agency commenced its investigation. In December
1999, complainant received a copy of the completed EEO investigation.
On December 4, 2000, complainant's representative sent a letter to the
agency requesting the status of his earlier request for a hearing and
reiterating his request for a hearing. On April 9, 2001, the agency
issued a Final Agency Decision (FAD). The case was never assigned to
an Administrative Judge.
In its FAD, the agency concluded that complainant failed to prove
discrimination as alleged. Complainant asserts on appeal that he was
improperly denied a hearing before an Administrative Judge. In response,
the agency argues that the August 19, 1998 request for a hearing was
premature based on the fact that the case had been held in abeyance at
the time of the request.
Analysis and Findings
The agency argues that since the case was held in abeyance, complainant's
hearing request was premature since the time limits for processing was
suspended at the time complainant requested a hearing.<1> We agree
that complainant's hearing request was premature since the complaint
was held in abeyance only 84 days after filing the formal complaint.
However, there is no indication in the record that complainant was ever
provided written notice of his right to request a hearing within 30 days
from receiving the completed EEO investigative file in accordance with
29 C.F.R. �1614.108(f).<2> Accordingly, complainant's second request
for a hearing dated December 4, 2000 shall be deemed a timely request
for a hearing before an 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 agency shall submit to the Hearings Unit of the Phoenix District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. 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 (K0501)
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)
(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 (M0701)
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
September 4, 2002
__________________
Date
1 Pursuant to 29 C.F.R. �1614.301(c), �[w]hen a person is employed by
an agency not subject to 5 U.S.C. 7121(d) and is covered by a negotiated
grievance procedure, allegations of discrimination shall be processed as
complaints under this part, except that the time limits for processing
the complaint contained in � 1614.106 and for appeal to the Commission
contained in � 1614.402 may be held in abeyance during processing of
a grievance covering the same matter as the complaint if the agency
notifies the complainant in writing that the complaint will be held in
abeyance pursuant to this section.�
2 The completed EEO Investigative File was transmitted to complainant
in December 1999.