0120102473
09-16-2010
Arthur A. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Arthur A. King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120102473
Agency No. 4F-926-0280-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 20, 2010, 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.
In his complaint, Complainant alleged that the Agency subjected him to discrimination and harassment on the basis of reprisal for prior protected EEO activity1 when:
1. On or around September 15, 2009, Complainant's request for Overtime Bypass was denied and he was forced to work overtime;
2. During pay period 18 (August 15-28, 2009), Complainant was charged annual leave instead of the Leave Without Pay (LWOP) as he had requested. Further, Complainant indicated that he has not received documentation reflecting why he was charged annual leave; and
3. On October 5, 2009, and several other dates, Complainant was told not to speak to the other carriers in his vicinity.
The Agency accepted the complaint for investigation. On February 18, 2010, the Agency mailed Complainant a copy of the investigative record and provided him with the right to request a hearing before an EEOC Administrative Judge (AJ) or a final agency decision. The Agency issued its final decision on April 20, 2010. In its decision, the Agency noted that Complainant failed to request a hearing or an FAD. Based on Complainant's failure to respond, the Agency issued its decision finding no discrimination or harassment.
Complainant appealed noting that he timely requested a hearing. In his appeal, Complainant provided copies of the certified mail receipts which indicated that he mailed a request for a hearing to the Agency and the EEOC's Los Angeles District Office on March 17, 2010. The record also includes a copy of an order by an AJ requesting that the Agency provide the complaint record. In that order, the AJ noted that complainant's request for a hearing was received by the EEOC on March 18, 2010, and docketed the hearing request as EEOC Hearing No. 480-2010-00328X. As such, Complainant argued that the matter should be forwarded for further processing by the EEOC AJ.
EEOC Regulation 29 C.F.R. � 1614.108(f) provides that complainant has the right to request a hearing before an AJ within 30 days of receipt of the investigative file. Here, the record contains a copy of Complainant's request for a hearing. Therein, Complainant mailed the request for a hearing on March 17, 2010; within 30 days of his receipt of the report of investigation. Therefore, 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.
CONCLUSION
Accordingly, after a careful review of the record, it is the decision of the Commission to VACATE the FAD and REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Los Angeles 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's 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
September 16, 2010
__________________
Date
1 The record indicates that complainant filed a previous EEO complaint; however there is no information as to which statute he alleged was violated.
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0120102473
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102473