Wesley A. Singletary, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 18, 2000
05a00301 (E.E.O.C. Oct. 18, 2000)

05a00301

10-18-2000

Wesley A. Singletary, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Wesley A. Singletary v. United States Postal Service

05A00301

October 18, 2000

.

Wesley A. Singletary,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Request No. 05A00301

Appeal No. 01992562

Agency No. 4-H-335-0369-98

DENIAL OF REQUEST FOR RECONSIDERATION

The agency initiated a request to the Equal Employment Opportunity

Commission (EEOC or Commission) to reconsider the decision in Wesley

A. Singletary v. United States Postal Service, EEOC Appeal No. 01992562

(December 1, 1999), which reversed the agency's dismissal of the complaint

for failure to timely file the complaint.<1> EEOC Regulations provide

that the Commission may, in its discretion, reconsider any previous

Commission decision where the requesting party demonstrates 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. 29 C.F.R. �

1614.405(b).

After a review of the agency's request for reconsideration, the previous

decision, and the entire record, the Commission finds that the request

fails to meet the criteria of 29 C.F.R. � 1614.405(b). In its request,

the agency reasserts that complainant received a Notice of Right to

File Individual Complaint on October 10, 1998, and did not file his

formal complaint until October 29, 1998, which was past the fifteen-day

filing deadline. While the prior decision specifically examined when

complainant received the Notice of Right to File in relation to the

filing deadline, upon reconsideration it is clear that the decision was

incorrectly based on a determination that complainant's representative was

not an attorney. The EEO Counselor's report indicates that complainant's

designated representative is an attorney.<2> Furthermore, there is no

other evidence in the record directly addressing whether complainant's

representative is an attorney.

EEOC Regulation 29 C.F.R. � 1614.605(d) provides that when a complainant

designates an attorney as representative, service of all official

correspondence shall be made on the attorney and the complainant, but time

frames for receipt of materials shall be computed from the time of receipt

by the attorney. Consequently, as the record contains no information as

to when complainant's attorney received the Notice of Right to File,

we find that the agency has failed to show that complainant's formal

complaint was untimely filed. Therefore the Commission denies the

instant request by the agency.

The decision in EEOC Appeal No. 01992562 remains the Commission's final

decision. There is no further right of administrative appeal on the

decision of the Commission on this request for reconsideration.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue

to complainant a copy of the investigative file and also shall notify

complainant of the appropriate rights within one hundred fifty (150)

calendar days of the date this decision becomes final, unless the matter

is otherwise resolved prior to that time. If the complainant requests a

final decision without a hearing, the agency shall issue a final decision

within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

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.

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 18, 2000

__________________

Date

1On 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.

2We also note that as part of his remedy, complainant requested attorney's

fees.