01980862
11-08-1998
Edwin Buccat, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Edwin Buccat, )
Appellant, )
)
v. ) Appeal No. 01980862
) Agency No. 4F-945-0153-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a determination by the
agency that closed his case prior to the filing of a formal complaint,
regarding an alleged incident of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The agency's determination was received by
appellant on October 30, 1997. The appeal was postmarked November 5,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
The record reflects that appellant initiated contact with an EEO Counselor
on March 21, 1997. The Informal Complaint of Discrimination reflects
that appellant underwent EEO counseling on the issue that, on February
10, 1997, he was denied time to complete an EEO affidavit on the basis
of reprisal for prior EEO activity.
By letter dated June 10, 1997, an agency EEO official sent appellant a PS
Form 2579A (Notice of Right to File) and a PS Form 2565 (EEO Complaint of
Discrimination in the USPS) by certified mail. Appellant was apprised
that he had fifteen days from the date of the receipt of the Notice in
which to respond and that if he did not do so, his case "may be closed
for failure to pursue."
By letter to the agency dated October 13, 1997, appellant requested
information on the status of his EEO complaint. By letter dated
October 28, 1997, the agency responded to appellant's letter of October
13, 1997. Therein, the agency stated that a Notice of Right to File a
Formal Complaint was mailed to his address on June 10, 1997; that the
Notice contained the proper forms for use if he wished to pursue the EEO
complaint process; and that although attempts were made to deliver the
letter to his address of record, the letter was returned to the agency
EEO office on June 24, 1997, as unclaimed. In conclusion, the agency
stated that appellant's case was considered closed.
By letter dated November 3, 1997, appellant responded to the agency's
letter of October 28, 1997, stating that he had never received the Notice
of Right to File a Formal Complaint. Appellant stated that he never
received a notice of certified mail relating to the agency letter of
June 10, 1997, until subsequent to June 24, 1997. Appellant also stated
that he immediately attempted to pick up the letter of June 10, 1997,
but was informed by the postal clerk that the letter had been returned
to its sender. Appellant argued that the agency's action, as reflected
in its letter of October 28, 1997, was premature. Appellant requested
that his case be reopened.
On November 5, 1997, appellant filed an appeal from the agency's letter
of October 28, 1997. On appeal, appellant argues that after he had not
heard from the agency regarding his informal complaint of discrimination,
he wrote to the agency and discovered that the agency had closed his case
because he had purportedly failed to respond to a Notice of Right to File
a Formal Complaint. Appellant argues that the agency failed to show that
he ever received the Notice and the agency did not attempt deliver by
any method other than purportedly by certified mail. Appellant requests
that he be provided an opportunity to file a formal complaint.
The Commission finds that the agency's letter of October 28, 1997,
closing appellant's case, was in essence a dismissal of appellant's
EEO matter. There is no indication in the record that appellant filed
a formal EEO complaint or even had the opportunity to do so. The agency
cannot dismiss a matter, pursuant to EEOC Regulation 29 C.F.R. �1614.107,
or issue a final decision concerning a matter, pursuant to EEOC Regulation
29 C.F.R. �1614.110, that has not been the subject of an EEO complaint.
Moreover, the record does not support a finding that appellant was in
receipt of a Notice of Right to File a Formal Complaint, as specified
in EEOC Regulation 29 C.F.R. �1614.105(d) and, therefore, there is no
evidence that appellant abandoned his EEO claim warranting the agency's
closure. Accordingly, the agency's decision of October 28, 1997, is
VACATED, and the matter is REMANDED to the agency in accordance with
the ORDER below. See Briand v. USPS, EEOC Appeal No. 01960411 (October
28, 1996).
ORDER
Within thirty (30) calendar days of the date that this decision
becomes final, the agency shall provide appellant with the notice of
the right to file a formal complaint as described in EEOC Regulation
29 C.F.R. �1614.105(d). If appellant files a formal complaint, the
agency should process the complaint pursuant to EEOC Regulation 29
C.F.R. �1614.106 et seq. A copy of the agency's notice of appellant
providing him with the right to file a complaint, as well as evidence of
appellant's receipt thereof, must be submitted to the Compliance Officer
as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Nov. 8, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations