01A42791
07-15-2004
Giraldo Fernandez-Guerra, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Giraldo Fernandez-Guerra v. United States Postal Service
01A42791
07-15-04
.
Giraldo Fernandez-Guerra,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42791
Agency No. 1-H-332-0003-02
DECISION
Complainant timely initiated an appeal from a final agency decision (FAD)
dismissing his claims 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. Complainant
alleges the Agency discriminated against him on the bases of his race
(Caucasian), national origin (Hispanic), reprisal for prior EEO activity
and disability (unknown), when he was placed on emergency suspension with
a non-duty status. Complainant also contends he requested a hearing in
front of an EEOC Administrative Judge (AJ) and therefore the Agency's FAD
was erroneously issued. Pursuant to 29 C.F.R. � 1614.405, the Commission
accepts the Complainant's appeal and remands the case for the reasons
stated below.
BACKGROUND
Complainant worked as a Mail Handler in the Agency's Fort Lauderdale
facility at the time of the alleged discrimination. Complainant claims
he was discriminated against when he was placed on emergency suspension
with a non-duty status after allegedly threatening a coworker's physical
safety. Complainant denies ever confronting his coworker.
On February 18, 2004, the Agency issued a FAD dismissing Complainant's
claims because he failed to establish a prima facie case of
discrimination on the bases of race, national origin, disability and
reprisal. Additionally, the Agency concluded that if, assuming arguendo,
Complainant had established a prima facie case of race, national origin,
reprisal and disability discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for its actions that Complainant failed to
prove were pretext.
On March 7, 2004, Complainant filed a timely appeal challenging the FAD
on grounds that he had requested a hearing before an EEOC AJ on November
28, 2003. On March 17, 2004, the Agency issued a reply stating it never
received Complainant's Request for Hearing Form and therefore issued a
FAD in accordance with 29 C.F.R. � 1614.110.
FINDINGS AND ANALYSIS
After a review of the record in its entirety, the Commission finds
that Complainant timely requested an AJ hearing pursuant to 29 C.F.R.�
1614.108(f) and (g). The record reveals that Complainant mailed his
request for a hearing on November 28, 2003 to the EEOC field office in
Miami. The Agency erred in denying Complainant a hearing when Complainant
provided evidence that he mailed his Request for Hearing Form to the
EEOC in a timely manner. See Thompson v. Department of the Army, EEOC
Request No. 05940588 (February 24, 1995) (where a complainant's prompt
yet misdirected appeal was not considered untimely). The Commission
therefore vacates the FAD and remands the case to the Agency for further
processing in accordance with this decision and with the order below.
ORDER
The Agency shall submit a request for a hearing to the Hearings Unit
of the appropriate EEOC field office and 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 also include a copy
of this opinion with Complainant's file so that the Administrative Judge
can issue a decision pursuant to C.F.R. � 1614.109.
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 iswithin 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
____07-15-04______________
Date
5 O1A42791