01a52659
08-17-2005
Mark S. Jarjisian, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area) Agency.
Mark S. Jarjisian v. United States Postal Service
01A52659
August 17, 2005
.
Mark S. Jarjisian,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area)
Agency.
Appeal No. 01A52659
Agency No. 4C-440-0192-03
EEOC No. 220-2005-00016X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 26, 2005, dismissing his 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of race (Caucasian),
sex (male), disability, and in reprisal for prior EEO activity when:
on June 6, 2003, complainant was given an Official Discussion regarding
Sick Leave;<1>
on June 6, 2003, after an official discussion, complainant left work and
was not allowed to return to duty until he provided medical documentation;
on July 29, 2003, complainant was issued a Notice of 7-Day Suspension; and
on various dates from June 11, 2003, through August 16, 2003, complainant
was subjected to disparate treatment with regard to work assignments
and work hours.
In its final agency decision, the agency stated that it completed its
investigation on December 2, 2004, and sent complainant a copy of the
investigative file and notice of his right to request a hearing or a
final agency decision without a hearing. The agency further stated that
complainant received a copy of the investigative file and the notice
on December 17, 2004, but complainant failed to request a hearing or a
final agency decision. Therefore, the agency rendered a decision on the
merits pursuant to 29 C.F.R. � 1614.110(b), finding no discrimination
based on race, sex, disability, and retaliation.
However, the record reveals that subsequent to filing the instant
complaint, complainant filed another complaint, Agency No. 4C-440-0135-04.
See Appeal of Final Agency Decision. After 180 days had expired and
pursuant to 29 C.F.R. � 1614.108(g), complainant timely requested a
hearing before an EEOC Administrative Judge (AJ) from the Cleveland
District Office on Agency No. 4C-440-0135-04. In responding to the
AJ's Acknowledgment and Order, complainant, who had not yet received the
investigative file for the instant complaint even though more than 180
days had elapsed since he filed it, requested that the AJ consolidate
the instant complaint with Agency No. 4C-440-0135-04, via Complainant's
Response to Acknowledgment and Order and Motion to Consolidate and
Amend dated December 5, 2004. It is not clear from the record what
response complainant received from the AJ, but on a Scheduling Order and
Instructions dated March 10, 2005, both the instant complaint, Agency
No. 4C-440-0192-03, and subsequent complaint, Agency No. 4C-440-0135-04,
were captioned under EEOC Case No. 220-2005-00016X. Accordingly, we
conclude that the AJ agreed to consolidate the complaints, and we are
not persuaded that complainant's failure to make a separate request for
a hearing pursuant to the agency's December 2, 2004 notice of his right
to request a hearing is of consequence.
Accordingly, we VACATE the agency's final decision because at the time it
was rendered, both Agency Nos. 4C-440-0192-03 and 4C-440-0135-04 were
(and remain) pending before the Cleveland District Office, and it was
not within the agency's authority to issue a final decision on
Agency No. 4C-440-0192-03. The agency is directed to take action
consistent with the order below.
ORDER
To the extent that the following action has not already been taken,
the agency must submit Agency No. 4C-440-0192-03 complaint file to the
Cleveland District Office for consolidation with Agency No. 4C-440-0135-04
currently captioned under EEOC Case No. 220-2005-00016X.
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
August 17, 2005
__________________
Date
1 The agency dismissed claim (1) and accepted
claims (2) through (4) in its Partial Acceptance/Partial Dismissal of
Formal EEO Complaint dated December 23, 2003.