William L. Knox, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionMar 16, 2000
01976078 (E.E.O.C. Mar. 16, 2000)

01976078

03-16-2000

William L. Knox, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.


William L. Knox v. United States Postal Service

01976078

March 16, 2000

William L. Knox, )

Complainant, )

)

v. ) Appeal No. 01976078

)

William J. Henderson, ) Agency No. 4C-190-1215-95

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic Areas), )

Agency. )

____________________________________)

DECISION

William L. Knox (complainant) filed an appeal with this Commission

from a final decision of the United States Postal Service (agency)

concerning his complaint of unlawful employment discrimination, in

violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq., and Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. � 2000e et seq.<1> Complainant's claim of discrimination is

based upon his race (White), and physical disability (lower back), when:

(1) on June 19, 1995, he was denied use of a stool and subsequently was

sent home on LWOP; (2) on June 20, 1995, he was again denied the use of

a stool and told to stand continuously; and (3) on June 23, 1995, he was

issued a suspension for failure to follow instructions/insubordination.

The appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37, 659

(1999) (to be codified at 29 C.F.R. � 1614.405).

On July 10, 1996, complainant filed a formal EEO complaint claiming

discrimination as referenced above. The agency contends that it sent

complainant a copy of the investigative file and notified him of the

opportunity to request either a hearing before an EEOC Administrative

Judge (AJ) or a final agency decision (FAD), without a hearing, within 30

days from the receipt of the notification. The agency further argues that

complainant received such notification on May 16, 1997.<2> Complainant's

request for a hearing was postmarked June 16, 1997. The agency determined

that complainant failed to timely request a hearing and subsequently

issued a FAD finding no discrimination on July 11, 1997.

On appeal, complainant argues, inter alia, that he was improperly denied

a hearing before an AJ. Upon review of the entire record we agree with

complainant. While complainant contends that he did not receive the

hearing rights until May 17, 1997, we find his request for a hearing

timely even if he had received the agency's notification on May 16,

1997, as the agency contends, since June 15, 1997 fell on a Sunday.

See 64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108(f)) ; See also 29 C.F.R � 1614.604.

Accordingly, for the reasons stated herein-above, we hereby vacate the

FAD and remand this matter to the Hearings Unit of the appropriate EEOC

field office for a hearing.

ORDER

The complaint is remanded to the Hearings Unit of the EEOC Philadelphia

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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

You have the right to file a civil action in an appropriate United States

District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you

receive this decision. 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. If you

file a request to reconsider and also file a civil action, 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:

3/16/00

_______________ _________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on __________________.

By: _________________________________

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.

2 The agency, in its FAD, originally argued that complainant received his

hearing rights on May 15, 1997 but subsequently corrected its position

by asserting that he received his hearing rights on May 16, 1997.