01A43952
10-28-2004
Cathy Mansfield, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cathy Mansfield v. United States Postal Service
01A43952
October 28, 2004
.
Cathy Mansfield,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43952
Agency No. 1H-331-0049-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her 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. For the following reasons, the Commission
VACATES the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Maintenance Support Clerk, PS-5 at the agency's Miami, Florida Mail
Processing and Distribution Center facility. Complainant sought EEO
counseling and subsequently filed a formal complaint on May 15, 2000,
alleging that she was discriminated against on the basis of reprisal
for prior EEO activity when her bid position was re-posted from Tour
I to Tour II. Complainant also alleged that the re-posting of her bid
position constituted a breach of a June 14, 1999 settlement agreement
granting her a change in pay location.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge
(AJ) or, alternatively, to receive a final decision by the agency.
Complainant states on appeal that she requested a hearing, and presents
proof of timely certified mailing of her request to the appropriate EEOC
District Office and to the agency on March 28, 2001.
For reasons not readily apparent, the agency did not issue a FAD on
the complaint until April 19, 2004. In its FAD, the agency stated that
complainant had not responded to the advisory that she might elect between
an immediate FAD and a hearing before an AJ. The agency then found no
discrimination with regard to the re-posting of complainant's bid. The
agency did not address complainant's allegation of breach of settlement.
On appeal, complainant submitted copies of various documents already of
record, and requests that her case be remanded for a hearing. The agency
did not file a reply to the appeal.
Settlement Breach
The record reflects that on November 15, 2000, the agency issued
a FAD finding no breach of the June 14, 1999 settlement agreement.
Complainant was properly advised of her appeal rights to the Commission,
but did not timely file an appeal nor provide an explanation for her
failure to do so. Accordingly, insofar as complainant's appeal pertains
to the breach of settlement allegation, the appeal is dismissed. See 29
C.F.R. � 1614.402(a) (appeals to the Commission must be filed within 30
days of receipt of the FAD).
Re-Posting of Bid
The Commission notes that complainant has submitted photocopies of
certified-mail receipts for her original hearing request (directed
to the appropriate EEOC District Office) and two copies (served on the
agency's designated contacts). The Commission notes in particular that
the copy served on the EEOC District Office was properly addressed, and
was mailed on March 28, 2001, as complainant states. Because complainant
received no response to her timely, properly served request for a hearing,
the Commission vacates the final agency decision regarding the re-posting
of her bid position, and remands the matter to the EEOC Miami District
Office for assignment to an Administrative Judge.
ORDER
The final agency decision is VACATED, and the complaint is REMANDED to
the Hearings Unit of the Miami District Office for assignment to an
Administrative Judge in an expeditious manner. 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
October 28, 2004
__________________
Date