01a61009_r
05-03-2006
Esteban Martinez v. United States Postal Service
01A61009
May 3, 2006
.
Esteban Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61009
Agency No. 4H-330-0186-05
Hearing No. 150-2005-00679X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his formal EEO complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405.
During the relevant time, complainant was employed as a Vehicle Operations
and Maintenance Assistant/Letter Carrier at the agency's Carol City Post
Office in Opalocka, Florida.
On June 9, 2005, complainant filed the instant formal EEO complaint.
Therein, complainant claimed that he was discriminated against on the
bases of race (not specified), national origin (Hispanic), and sex (male)
when:
(1) on May 11, 2005, he was instructed to operate an unsafe vehicle
after being informed that the left brake light was out; and
(2) on June 16, 2005, he received a Letter of Warning for not wearing
his badge.
On July 12, 2005, the agency issued a document identified as "Partial
Acceptance/Partial Dismissal of Form EEO Complaint." Therein, the agency
accepted claim (2) for investigation. The agency dismissed claim (1)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim,
finding that complainant was not aggrieved regarding the matter identified
therein.
At the conclusion of the investigation of claim (2), complainant received
a copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ).
On September 21, 2005, the AJ issued an Order of Dismissal, on the grounds
that complainant did not comply with the regulatory requirements found at
29 C.F.R. � 1614.108(f). Specifically, the AJ determined that federal
agencies are provided with 180 days in which to investigate a complaint
before a complainant may request a hearing before an AJ. The AJ found
that complainant filed the instant formal complaint on June 9, 2005, and
that the formal complaint was subsequently amended, on July 5, 2005.
The AJ further found that complainant made two hearing requests, dated
July 18, 2005, and September 3, 2005; and that the hearing requests
were premature. The AJ dismissed complainant's hearing request without
prejudice.
On October 27, 2005, the agency issued the instant final agency decision.
Therein, the agency did not indicate that complainant's hearing
request was premature. Rather, the agency stated that following
the investigation of claim (2), it provided complainant a copy of the
investigative report and informed him of his right to request a hearing
before an AJ. The agency further stated that because complainant failed
to request a hearing, or a final agency decision without a hearing,
it issued a final agency decision in accordance to with 29 C.F.R. �
1614.110(b). Therein, the agency found no discrimination.
On appeal, complainant contends that he followed "all time limitations
and requirements" in requesting a hearing before an AJ. Complainant
further states "I am enclosing copy of the request for a hearing
form that I mailed on 9-3-05, after it was sent to me with the Final
U.S.P.S. investigative file on 8-31-05 . . . ."
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that complainant has
the right to request a hearing before an AJ within thirty (30) days of
receipt of the investigative file.
Here, the record contains a copy of complainant's request for a hearing.
Therein, complainant signed and dated the form on September 3, 2005,
requesting a hearing. The record further reflects that complainant's
request form contained a date- stamped marking indicating that the EEOC's
Miami District Office received complainant's request on September 7,
2005. We find that complainant submitted his request for a hearing in
a timely manner, contrary to the agency's determination that a request
for a hearing was not made at all.
Therefore, after a careful review of the record, it is the decision of the
Commission to VACATE the FAD finding that the agency did not discriminate
against complainant regarding the matter identified in claim (2) and we
REMAND this matter to the agency for further processing in accordance
with the ORDER below.
Because we are remanding claim (2) to the agency for the reasons set forth
above, we will not presently address the agency's partial dismissal of
claim (1).
ORDER
The agency shall submit to the Hearings Unit of the EEOC Miami District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. 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 (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 3, 2006
__________________
Date