01972797
08-31-1999
Florestine George, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region) Agency.
Florestine George, )
Appellant, )
) Appeal No. 01972797
v. ) Agency No. 1F-901-1136-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region) )
Agency. )
)
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (African), color (Brown), and sex (Female), in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. Appellant alleges she was discriminated against on February 28,
1996, when she was denied a schedule change. The appeal is accepted
in accordance with EEOC Order No. 960.001. For the following reasons,
the agency's decision is VACATED AND REMANDED.
The record reveals that during the relevant time, appellant was employed
as a Clerk in Los Angeles. Appellant alleged that she was not allowed
to change her days off so that she could car pool. She alleged that
employees not of her protected groups were allowed to take details so
that they could car pool. Believing she was a victim of discrimination,
appellant sought EEO counseling and, subsequently, filed a complaint on
May 31, 1996. At the conclusion of the investigation, appellant did not
choose either a FAD or a hearing, so the agency issued a FAD.
The FAD concluded that appellant failed to establish a prima facie case
of race, color or sex discrimination because she presented no evidence
that similarly situated individuals not in her protected classes were
treated differently under similar circumstances.
Following a thorough review of the record on appeal, the Commission
concludes that appellant's allegations have not been adequately
investigated to permit the Commission to render a decision on the merits
of her complaint. In this regard, EEOC Regulation 29 C.F.R. � 1614.108(b)
provides that the agency shall develop a complete and impartial factual
record upon which to make findings on the matters raised in the written
complaint.
Based on a review of the record, the Commission finds that the agency
failed to provide any witness or management testimony. We also find that
the agency failed to ascertain the reason for denying the appellant's
request. Further, there is no documentary evidence of how comparable
employees were treated by the agency in terms of schedule changes for
car pooling or details granted to accommodate car pooling.
Therefore, the agency's decision is VACATED and the complaint is REMANDED
for a supplemental investigation, in accordance with the Order below.
ORDER
The agency is ORDERED to conduct a supplemental investigation within
120 days of the date this decision becomes final, which shall include
the following actions:
1) The agency shall ensure that responsible agency officials, appellant's
witnesses and any necessary comparison employees provide affidavits
addressing appellant's allegations that others were allowed to change
their schedules or take details in order to car pool. The agency is
to determine the specific reason why appellant was denied a schedule
change in order to car pool and is to determine whether a schedule
change has been approved for car pooling. The agency is to provide
comparison information regarding the race, color, and sex of those who
have changed their hours in order to car pool. The agency shall insure
that the investigator obtains all relevant information and procedures
for changing ones day off. The agency is also to provide any policies
or procedures regarding car pooling.
2) The agency shall provide appellant (30) days for the opportunity
to respond by affidavit and submit additional evidence for the record
that she deems relevant to the supplemental investigation. After the
record has been supplemented in accordance with this ORDER, the agency
shall provide appellant with a copy of the supplemental investigation
report, pursuant to 29 C.F.R. �1614.108(f), and thereafter issue a new
FAD within thirty (30) calendar days of appellant's response or, if
appellant fails to respond, within thirty (30) calendar days following
the last day appellant would have been permitted to respond. Copies of
the completed supplemental investigation and new FAD must be submitted
to the Compliance Officer, as referenced below.
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 the
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 the
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:
August 31, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations