01984820
03-17-1999
James Magruder, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
James Magruder, )
Appellant, )
)
v. ) Appeal No. 01984820
) Agency No. 4K-200-1066-96
William J. Henderson, ) Hearing No. 120-97-4036X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DECISION
On May 29, 1998, James Magruder (appellant) timely appealed the final
decision of the United States Postal Service (agency), dated May 8,
1998, which concluded he had not been unlawfully retaliated against
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. This appeal is accepted in accordance with
the provisions of EEOC Order No. 960.001.
The issue on appeal is whether the Administrative Judge's recommended
decision finding unlawful retaliation became binding on the agency and,
therefore, its final decision.
The record reveals that appellant filed a formal EEO complaint with the
agency on July 1, 1996, raising allegations that agency officials at
the Twinbrook, Maryland, postal station unlawfully retaliated against
him for engaging in prior, protected EEO activity. The agency accepted
the complaint and conducted an investigation. At the conclusion of
the investigation, appellant requested an administrative hearing before
an Equal Employment Opportunity Commission (EEOC) administrative judge
(AJ). The hearing was scheduled for June 4, 1997. However, when the
agency's representative failed to appear at the hearing in a timely
manner, the AJ issued an Order To Show Cause, directing the agency to
provide reasons why a default judgment should not be entered against it.
In a decision dated July 11, 1997, the AJ found that the agency's response
was not sufficient to establish cause for its failure to timely appear and
proceed with the hearing in this case. Therefore, the AJ issued a default
judgment in favor of appellant and ordered a series of remedial actions.
On May 8, 1998, ten months after the AJ issued his recommended decision,
the agency issued its final decision, rejecting the AJ's default judgment
and entering a finding of no retaliation. It is from this decision that
appellant now appeals.
The record establishes that the AJ served a copy of his July 11, 1997
decision on the agency's representative by mail. The AJ also served,
by mail, a copy of his decision, accompanied by the complete complaint
file, on the Senior EEO Complaint Processing Specialist at the agency's
Capitol Heights, Maryland, facility, as this was the office which had
processed appellant's complaint at the agency level, including requesting
the hearing and receiving all pre-hearing documents. The agency does not
dispute that these individuals received copies of the AJ's decision by
mail in a timely manner. However, in its written hearing request, the
agency had asked the AJ to send a copy of his decision to the agency's
Philadelphia Processing Center. Apparently due to a clerical error,
the AJ's decision was not also sent to Philadelphia.
EEOC Regulation 29 C.F.R. �1614.109(g) specifies that the findings
and conclusions of an AJ shall become binding on the agency sixty (60)
calendar days after the agency receives those findings and conclusions
unless the agency has already issued a final decision rejecting or
modifying the AJ's recommendations. The regulation does not provide
specific guidance on which entity within an agency should be served with
the AJ's decision. In the instant case, it is clear that the agency's
final decision rejecting the AJ's recommended findings and conclusions
was issued over nine months after the agency's representative and the
agency's complaints processing office received copies of the AJ's
recommended decision. The agency has argued, however, that due to
the AJ's failure to send a copy of his decision to the Philadelphia
Processing Center, as requested, the agency never officially received
a copy of the decision and, therefore, the time for issuing its final
decision should not have been considered to have been running.
After a careful review of the record, the Commission finds inadequate
support for the agency's position in this case. The agency has failed to
provide any explanation for its own lengthy delay in either notifying the
AJ of his error in failing to additionally serve the Philadelphia office
or forwarding the copies of the AJ's decision received by the agency
representative and/or the complaints processing office to Philadelphia.
It is clear that the agency was fully aware of the AJ's error long before
it issued its final decision. The record contains an undated letter from
appellant, received by the agency on November 20, 1997, inquiring about
why a final decision had not been issued. Also on November 20, 1997,
the record shows that the agency received a copy of a letter sent from
the AJ to the appellant explaining that his July 11, 1997 recommended
decision would be binding on the agency if they had failed to issue
a timely final decision rejecting it. Based on its receipt of these
two letters, the Commission finds that the agency was on notice, as of
November 20, 1997, that there was a problem with its timely issuance of
a final decision. Based on this notice, the agency should have taken
prompt action to preserve its ability to reject or modify the AJ's
decision. The Commission finds that the agency failed to do so within
a reasonable period of time. The agency waited another three months
before it sent a letter, dated February 18, 1998, to the AJ to notify
him that a copy of his recommended decision had not also been served
on the Philadelphia Processing Center. In response, the AJ forwarded
a copy of his decision to Philadelphia by letter dated March 11, and
received on March 16, 1998. The agency issued its final decision nearly
two month later, on May 8, 1998. Based on this record, the Commission
concludes that the agency unreasonably delayed its pursuit of this matter,
and therefore, is not justified in its argument that equity requires
an extension of the 60-day time limitation in 29 C.F.R. �1614.109(g).
See Baldwin County Welcome Center v. Brown, 466 U.S. 147, 155 (1984)
(per curiam) ("One who fails to act diligently cannot invoke equitable
principles to excuse lack of diligence.").
Accordingly, it is the decision of the Equal Employment Opportunity
Commission that the agency is bound by the AJ's default judgment of
unlawful retaliation in this matter, and the agency's final decision
is without legal effect. The case is REMANDED to the agency for full
compliance with the relief ordered in the AJ's decision as repeated,
in essence, in the following Order.
ORDER
The agency is ORDERED to take the following remedial action:
(A) Within thirty (30) calendar days of the date this decision becomes
final, the agency shall make an unconditional offer of reinstatement to
appellant of the position of Letter Carrier at the Twinbrook, Maryland,
Station, or to a substantially similar position.
(B) Within sixty (60) calendar days of the date this decision becomes
final, the agency is directed to award appellant back pay, with interest,
for all wages and benefits lost as a result of his unlawful termination,
"including increases in pay, step raises, and any other promotions to
which he automatically would have been entitled to during the time period
from his discharge to the date of his reinstatement, as well as any other
benefits of employment such as seniority, health insurance, leave, etc."
The appellant shall cooperate in the agency's efforts to compute the
amount of back pay and benefits due, and shall provide all relevant
information requested by the agency. If there is a dispute regarding
the exact amount of back pay and/or benefits, the agency shall issue
a check to the appellant for the undisputed amount within sixty (60)
calendar days of the date the agency determines the amount it believes
to be due. The appellant may petition for enforcement or clarification
of the amount in dispute. The petition for clarification or enforcement
must be filed with the Compliance Officer, at the address referenced
in the statement entitled "Implementation of the Commission's Decision."
(C) The agency shall post at the Twinbrook, Maryland, Post Office copies
of the attached notice. Copies of the notice, after being signed by
the agency's duly authorized representative, shall be posted by the
agency within thirty (30) calendar days of the date this decision
becomes final, and shall remain posted for sixty (60) consecutive
days, in conspicuous places, including all places where notices to
employees are customarily posted. The agency shall take reasonable
steps to ensure that said notices are not altered, defaced, or covered
by any other material. The original signed notice is to be submitted to
the Compliance Officer at the address cited in the paragraph entitled
"Implementation of the Commission's Decision," within ten (10) calendar
days of the expiration of the posting period.
(D) The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of back pay and other benefits due appellant,
including evidence that the corrective action has been implemented.
ATTORNEY'S FEES (H1092)
If appellant has been represented by an attorney (as defined by
29 C.F.R. �1614.501 (e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. �1614.501 (e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. �1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. � l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an action in an appropriate
United States District Court. It is the position of the Commission
that 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. You should be aware, however, that
courts in some jurisdictions have interpreted the Civil Rights Act of
1991 in a manner suggesting that a civil action must be filed WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision.
To ensure that your civil action is considered timely, you are advised to
file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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 (Z1092)
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:
March 17, 1999
_________________ _______________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated _____________ which found that
a violation of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e
et seq., has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions or privileges of employment.
The Twinbrook, Maryland, Post Office supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Twinbrook Post Office has been found to have unlawfully retaliated
against the individual affected by the Commission's finding when he was
terminated from his position as a Letter Carrier. The Commission has
ordered that this individual be reinstated with an appropriate back pay
award. The Twinbrook Post Office will ensure that officials responsible
for personnel decisions and terms and conditions of employment will
abide by the requirements of all Federal equal employment opportunity
laws and will not retaliate against employees who file EEO complaints.
The Twinbrook Post Office will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
____________________
Date Posted: _____________________
Posting Expires: _________________
29 C.F.R. Part 1614