0120082525
11-07-2008
Francisco Rivota, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Francisco Rivota,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082525
Agency No. 4J-606-0122-06
Hearing No. 440-2007-00075X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's April 25, 2008 final action concerning his equal
employment opportunity (EEO) complaint alleging 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.
During the period at issue, complainant was employed as a Carrier
Technician, PS-02, at the agency's Chicago Edgebrook Carrier Annex in
Chicago, Illinois.
On August 15, 2006, complainant filed the instant formal complaint.
Therein, complainant alleged that the agency discriminated against him
on the bases of national origin (Hispanic)1 and in reprisal for prior
EEO activity when:
(1) on May 5, 2006, his request for sick leave was denied and he was
charged AWOL;
(2) on May 17, 2006, the Customer Service Operations Manager allegedly
screamed at him and told his manager to fire him;
(3) on May 18, 2006, he was issued a Letter of Warning for failure to
follow instructions;
(4) on June 6, 2006, the Acting Supervisor allegedly kicked him;
(5) on June 14, 2006, he was issued a 7-day suspension for failure to
follow instructions; and
(6) on July 7, 2006, he was issued a 14-day suspension for failure to
follow instructions.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing.
On April 3, 2008, the AJ issued an Order of Dismissal dismissing
complainant's complaint with prejudice on the grounds that the issue he
sought to have decided at the hearing, as established by his pre-hearing
submission, was untimely and not properly raised during information
counseling. Specifically, the AJ stated that in his pre-hearing
submission, complainant alleged that he was discriminated against when he
was denied the privilege to case DPS mail as other carriers were allowed.
The AJ determined that there was no evidence in the record indicating
that complainant raised this issue with the EEO Counselor. Moreover,
the AJ determined complainant's failure to file pre-hearing submission
that addresses claims (1) - (6) investigated or discussed during the
informal counseling, and thus he effectively abandoned these claims.
The AJ also determined that complainant's new allegation that he was
denied the privilege of casing DPS mail was untimely raised, noting
that complainant informed him that he had raised this issue in a prior
complaint in 2005. Subsequently, the agency issued a final action dated
April 25, 2008, implementing the AJ's Order of Dismissal.
Claims (1) - (6)
As noted above, the AJ determined that complainant abandoned claims
(1) - (6) at the hearing stage and dismissed those claims. While not
altogether clear from the agency's final decision, it appears that the
agency adopted this ruling. The Commission, however, concludes that
while it was appropriate for the AJ to dismiss claims (1) - (6) from
the hearing process, the agency should have issued a final decision
on the merits of these claims based on the evidence gathered during
the investigation. Generally, the Commission has held that an agency
should not dismiss a complaint when it has sufficient information upon
which to base an adjudication. See Ross v. United States Postal Service,
EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States
Postal Service, EEOC Request No. 05900193 (April 12, 1990). While the
agency stated, in summary fashion, in its decision that it was finding no
discrimination occurred, it provides no explanation for this conclusion,
simply stating it was adopting the AJ's decision. However, the AJ made
no decision on the merits of claims (1) - (6). In Ericson v. Department
of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission
stated that "the agency has the burden of providing evidence and/or proof
to support its final decisions." See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). Therefore, we will remand
claims (1) - (6) back to the agency for a final decision on the merits
of the claims based on the evidence gathered during the investigation
in accordance with the following Order.
Additional Claim Raised at Hearing Stage Concerning DPS Mail
After a careful review of the record, we find, with respect to
complainant's allegation that he was denied the privilege of casing
DPS mail, that complainant failed to raise the matter with the EEO
Counselor, and it is unlike or related to the matters for which he
sought EEO counseling. EEOC Regulation 29 C.F.R. � 1614.107(a)(2)
provides, in pertinent part, that an agency shall dismiss a complaint,
or a portion thereof, that raises a matter that has not been brought to
the attention of an EEO Counselor and is not like or related to a matter
that has been brought to the attention of an EEO Counselor. Finally,
we find that the AJ properly found that the 2005 DPS mail issue was
untimely raised pursuant to 29 C.F.R. � 1614.107(a)(2). Accordingly,
we affirm the dismissal of this claim.
ORDER
The agency is ordered to issue a final decision on the merits of claims
(1) through (6) based on the evidence gathered during the investigation
within sixty (60) days of the date this decision becomes final.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0408)
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
November 7, 2008
Date
1 Complainant raised a claim of race (Hispanic) discrimination.
The Commission views Hispanic as a national origin basis.
??
??
??
??
2
0120082525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120082525