01a61175
05-12-2006
Douglas C. Hooper, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas C. Hooper v. United States Postal Service
01A61175
May 12, 2006
.
Douglas C. Hooper,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61175
Agency Nos. 4G-770-0030-04, 4G-770-0066-03, 4G-770-0133-00<1>
Hearing No. 330-2004-00062X
DECISION
Complainant appeals the agency's final action, dated November 9, 2005
in the above-entitled matter. Complainant alleged that the agency
discriminated against him on the bases of race (Caucasian), color
(white), disability (renal/shoulder/back), and reprisal for prior EEO
activity when:
(1) On October 5, 2003, complainant was removed from his bid assignment;
From March 14, 2003 and continuing, complainant has been denied a
reasonable accommodation and denied the opportunity to work.
In our prior decision, Hooper v. United States Postal Service, EEOC
Appeal No. 01A34658 (March 23, 2004), we remanded agency case number
4G-770-0122-00 to the agency for reinstatement of the previously settled
matter at the point where processing previously ceased. Complainant's
complaint was investigated and by notice to the Commission and the
agency dated July 29, 2004, complainant requested a hearing before
an Administrative Judge (AJ). The AJ ultimately issued a Notice of
Hearing Location, which scheduled complainant's complaints for a hearing
on February 28, 2005. However, on February 25, 2005, the AJ issued an
order, which acknowledged an agreement between the parties, that due
to complainant's medical condition, complainant would be permitted to
withdraw his request for a hearing, without prejudice, until June 1,
2005, presumably to allow time for complainant to reinstate his hearing
request, should his medical condition improve to the point where he
was able to proceed with a hearing on his consolidated complaints.
The order provided further that:
Complainant shall notify the Agency on or before June 1, 2005 that he
is medically prepared to continue processing his case and he wishes to
reinstate the above referenced complaints of discrimination on the docket
of the Commission. If Complainant does not elect to notify the Agency on
or before June 1, 2005, he will be barred from reinstating his complaints.
Thereafter, on November 9, 2005, the agency issued a final action in which
the agency determined that it would fully implement the AJ's decision.
This appeal followed.
On appeal, complainant states that he sent a request for continuance
of his case to the agency on May 27, 2005, together with medical
documentation. Complainant requests a hearing on the matter. On appeal,
the agency contends that complainant's complaint was properly dismissed
from the hearing process, but that the matter should be returned to
the agency for a decision on the merits of complainant's consolidated
complaints.
We find that complainant has been denied a decision on the merits of
his consolidated complaints to which he is entitled. We find that the
AJ's order of February 25, 2005, was intended to dismiss complainant's
complaints from the hearing process, unless complainant notified the
agency that he was able to continue with the hearing process by June
1, 2005. We find this order by the AJ to be reasonable and proper.
We observe that the correspondence dated May 26, 2005, that complainant
submits on appeal,<2> does not state that complainant is medically
able to continue with the processing of his complaints. Accordingly,
in the absence of any such notice to the agency, we find that the AJ's
dismissal of the complaints from the hearing process became operative
on June 1, 2005, and that the agency was required to issue a final
decision thereafter on the merits of complainant's claim. The agency
failed to issue such a decision. The agency simply adopted the AJ's
�decision� which was not a decision on the complaint, but was instead
an AJ determination to send the matter back for an agency decision.
We agree with the agency's argument on appeal that the matter should
now be remanded for an agency decision on the merits of the complaints.
The agency's final action is VACATED and we REMAND the consolidated
complaints to the agency for a decision on the merits of complainant's
claims.
ORDER
The agency shall issue a decision on the merits of complainant's
complaints within 60 days of the date this decision becomes final
pursuant to 29 C.F.R. � 1614.110(b). A copy of the decision must be
sent to the Compliance Officer as referenced herein.
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
May 12, 2006
__________________
Date
1Complainant's complaints were consolidated
for processing by the agency on April 13, 2004.
2This is the same correspondence which complainant claims to have sent
to the agency on May 27, 2005. The letter to the agency is signed by
a third party, who states that she is unable to undertake complainant's
representation, but writes on his behalf for the purpose of explaining
that complainant is still experiencing medical difficulties and wishes
to meet with his new representative.