0120064518
03-06-2008
Harold Clark, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Harold Clark,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120064518
Hearing No. 480-2006-00188X
Agency No. 4F-926-0006-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 10, 2006, concerning 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of race (African-American), age
(D.O.B. 3/26/51), and in reprisal for prior protected EEO activity when,
on September 21, 2005, he was placed on emergency off-duty status.
At the conclusion of the investigation, complainant was provided with
a copy of the report of investigation and a notice of his right to
request a hearing before an EEOC Administrative Judge (AJ). The agency
determined that complainant failed to request a hearing within the time
frame provided in 29 C.F.R. � 1614.108(f), and the agency issued a final
decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that complainant failed to prove that he was subjected to discrimination
as alleged. Specifically, the agency held that complainant failed to
establish a prima facie case of discrimination and that he failed to
establish that the agency's legitimate, nondiscriminatory reasons for
its actions were a pretext for discrimination.
On appeal, complainant argues that he requested a hearing in a timely
manner and urges the Commission to remand the case for a hearing before
an AJ. Complainant submits evidence on appeal that the United States
Postal Service delivered his request for a hearing in April 2006.
Commission records indicate that this case was assigned to an AJ in
April 2006. On March 19, 2007, the AJ issued a decision without a
hearing finding no discrimination.1
As an initial matter, we find that the agency improperly issued a final
decision in July 2006 because complainant submitted a timely request for a
hearing in April 2006. Despite the fact that the agency's final action,
and complainant's subsequent appeal, were therefore premature, we find
that this matter is ripe for review on appeal because more than forty
days have passed since the AJ's issuance of a decision in March 2007.
See 29 C.F.R. � 1614.110.
Upon review of the record in its entirety, including consideration of
all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final order,
because the Administrative Judge's issuance of a decision without a
hearing was appropriate and a preponderance of the record evidence does
not establish that discrimination occurred.
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 (S0900)
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. 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 (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
March 6, 2008
Date
1 In that decision, the AJ also addressed the agency's December 13,
2005 dismissal of six additional allegations for untimely EEO Counselor
contact and failure to state a claim.
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0120064518
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120064518