01A10281
04-02-2002
Howard L. Willett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Howard L. Willett v. United States Postal Service
01A10281
April 2, 2002
.
Howard L. Willett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 01A10281
Agency Nos. 1I-681-0041-97; 1I-681-0005-98
Hearing No. 320-98-8096X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final decision in the above-entitled matter.
Complainant alleges that the agency discriminated against him on the bases
of his race (Black) and sex (male) when he was denied 204-B assignments.
Complainant also alleges that the agency discriminated against him on
the bases of race (Black), sex (male) and reprisal (prior EEO activity)
when he was accused of being a thief, made to empty his pockets, and
harassed at work.
On appeal, complainant alleges that he was improperly denied a right to a
hearing before an EEOC Administrative Judge. Specifically, complainant
argues that he timely requested a hearing but, thereafter, requested
that the file be remanded to the agency so that the parties could pursue
mediation. In response to complainant's request, the Administrative Judge
sent a letter dated January 20, 1999, to complainant and his attorney
advising them that he was treating complainant's request �as a withdrawal
of his request for a hearing before an EEOC Administrative Judge,� since
it was not necessary to remand his complaint in order to seek mediation.
Once mediation was completed without success, complainant sought to have
his hearing request reinstated with the EEOC's Denver District Office.
However, complainant argues, that instead of reinstating complainant's
hearing request, the agency improperly issued its Final Agency Decision.
Complainant further argues that the January 20, 1999 letter from the
Administrative Judge did not clearly explain to complainant that he was
waiving his right to a hearing.
We disagree with complainant's assertion on appeal and find the
January 20, 1999 letter from the Administrative Judge perfectly clear.
That letter stated in relevant part:
This office has now received a letter dated January 14, 1999, from
complainant's representative, wherein complainant requests that we
remand this complaint to enable complainant and the agency to engage
in mediation. Seeing as it is not necessary for us to remand a federal
sector complaint to enable complainant to engage in mediation with an
agency, I shall treat complainant's request to remand as a withdrawal
of his request for a hearing before an EEOC Administrative Judge.
Based upon complainant's request, I am transmitting the complaint and
investigative files to you to process in accordance with complainant's
withdrawal of his request for a hearing.
We find the letter from the Administrative Judge clearly advises
the complainant that he is withdrawing his request for a hearing.
Accordingly, we do not find complainant's arguments on appeal
persuasive.<1>
With respect to merits of the complainant's claims, after a 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 decision because
the preponderance of the evidence of record 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
April 2, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
1 We note that complainant fails to raise contentions on appeal related
to the substance of the Final Agency Decision.