01A34265_01A34266
01-10-2005
Thomas B. Mozee & James Bailey, Complainants, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas B. Mozee & James Bailey v. United States Postal Service
01A34265 & 01A34266
01-10-05
.
Thomas B. Mozee & James Bailey,
Complainants,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal Nos. 01A34265 & 01A34266
Agency Nos. 4C-150-0046-00, 4C-150-0047-00, 4C-150-0074-00,
4C-150-0077-00,
4C-150-0031-01, & 4C-150-0032-01
Hearing Nos. 170-A1-8007X, 170-A1-8008X,170-A1-8126X,170-A1-8127X,
170-A1-8564X, & 170-A1-8565X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainants'
appeals from the agency's final order in the above-entitled matters.
In Complaint Nos. 4C-150�0046-00 & 4C-150-0047-00, complainants claimed
that the agency discriminated against them on the bases of race (black)
and disability (unspecified) when it failed to assign them vehicles that
would effectively accommodate their disabilities.
In Complaint Nos. 4C�150-0074-00 & 4C-150-0077-00, complainants claimed
that the agency discriminated against them on the bases of race (black),
disability (unspecified), and reprisal (prior EEO activity) when:
On March 21, 2000, the special delivery supervisor started arguments
with them, took away the keys of vehicles that had been assigned to them,
and told them that they could no longer use those vehicles; and
On unspecified dates, management failed to reasonably accommodate their
disabilities by allowing them to use vehicles that would assist them in
performing collections.
In Complaint Nos. 4C-150-0031-01 & 4C-150-0032-01, complainants claimed
that the agency discriminated against them on the bases of race (black),
disability (unspecified), and reprisal (prior EEO activity) when, on
October 2, 2000, they were reassigned to another craft and work station.
In accordance with an order from an EEOC Administrative Judge (AJ)
dated January 28, 2003, all six of the above-referenced complaints were
consolidated for a hearing. The AJ directed complainants to submit
a prehearing statement, including a witness list, by April 4, 2003.
A certificate of service prepared by complainants on April 4, 2003,
indicates that complainants sent the prehearing statement by facsimile
to their representative, with the expectation that the representative
would send it to the AJ that same day. The representative did not
do so until April 7th, and the AJ did not receive it until April 8th,
the day of the prehearing conference. The statement did not include a
witness list. Complainants also asserted that they sent letters to the
AJ concerning amendment of their complaints.
On April 8, 2003, the parties held a prehearing conference, by telephone,
before the AJ. At that conference, complainants indicated that they
wished to testify in their own behalf. The AJ denied their request on
the grounds that they did not submit the prehearing statement or witness
list by the April 4, 2003 deadline set by the AJ, and did not identify
themselves as witnesses when they submitted the prehearing statement.
Concerning amendments to their complaints, the AJ directed complainants
to go back to the agency for counseling on their proposed amendments.
On April 29, 2003, the AJ held a hearing and issued a bench decision
finding no discrimination. The agency implemented the AJ's decision
in its final order. On appeal, complainants contend that the AJ erred
in not informing them that they had to include themselves on a witness
list if they desired to testify.
In his bench decision, the AJ stated:
There were no witnesses approved to testify on behalf of the Complainants
(including Complainants) since the Complainants failed t[o] provide a
prehearing statement or witness list by April 4, 2003, as ordered by me
in the Scheduling Order previously issued in this matter.
AJ's Bench Decision dated May 7, 2003, p. 4.
On appeal, complainants asserted that the agency obstructed or tampered
with the mail in order to prevent delivery of their requests to the AJ
to amend their complaints. The AJ directed the agency to process those
requests as soon as they were received from complainants. The agency did
so, and dismissed the amendments on the grounds that they raised matters
regarding dissatisfaction with the processing of the instant complaint,
see 29 C.F.R. � 1614.107(a)(8), and matters that were already pending
before the AJ, see 29 C.F.R. � 1614.107(a)(1). Complainants have not
shown that the agency obstructed or tampered with their correspondence.
Concerning complainant's prehearing statement, the failure of
complainant's representative to submit the statement by April 4, 2003,
as set forth in the scheduling order, does not excuse complainants from
having to comply with that deadline. Concerning complainants' failure to
submit a witness list, there seems to have been a misunderstanding on the
part of the complainants that they would have to include themselves on a
witness list in order to testify at the hearing. There is nothing in the
various acknowledgment orders or the scheduling order that specifically
requires a complainant to include himself or herself on a list of proposed
witnesses. Given that complainants have not requested any witnesses other
than themselves, and given that there is no prejudice that can be shown by
allowing complainants to testify on their own behalf in their own case,
we will allow the testimony of the complainants to be taken before an
AJ and be made a part of the record in this case. We will also direct
the AJ to issue a new decision on the above-referenced complaints, and
the agency to issue a new final order either fully implementing or not
fully implementing the AJ's decision.
Accordingly, the agency's final order is vacated and the matter remanded
for further processing in accordance with our order below.
ORDER
The agency shall submit to the Hearings Unit of the Philadelphia District
Office of the EEOC a request for a supplemental hearing within fifteen
(15) calendar days of the date this decision becomes final, in order that
the testimony of complainants Thomas Mozee and James Bailey can be taken
with respect to the six above-referenced complaints, and complainants
be subject to cross-examination thereon.
The agency shall submit a copy of the complaint files in the
above-referenced complaints to the Philadelphia District Office 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 Philadelphia District Office. Thereafter, the Administrative
Judge shall issue a new decision on the above-referenced complaints in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a new
final order 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
___01-10-05_______________
Date