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.