01986117
06-08-2000
Nati Tsai, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency,
Nati Tsai v. United States Postal Service
01986117
June 8, 2000
Nati Tsai, )
Complainant, )
) Appeal No. 01986117
) Agency No. 4F-926-0041-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency, )
)
DECISION
INTRODUCTION
Complainant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq.<1> Accordingly, the appeal is accepted in accordance with 64
Fed. Reg. 37,644,37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
ISSUE PRESENTED
The issue presented herein is whether complainant timely requested
a hearing before an EEOC Administrative Judge (AJ) for her claim of
discrimination based on religion (Jehovah's Witness) and reprisal (prior
EEO Activity).
BACKGROUND
Complainant was a Part-Time Flexible Mark-Up Automated Clerk at the Santa
Ana, California Post Office. The record indicates that complainant filed
a formal complaint of discrimination on January 5, 1998, and named an
official with the local union as her representative.
The agency sent the investigative report with notice of complainant's
appeal rights and right to a hearing before an AJ, dated March 27, 1998,
to complainant and thereafter issued a final decision. The agency found
that complainant was unable to prove a prima facie case of discrimination
based on religion because she failed to demonstrate that she was treated
differently than other similarly situated employees. The agency also
found that it stated legitimate, nondiscriminatory reasons for its
actions.
On appeal, complainant argued that she was entitled to a hearing before
an AJ as requested. Complainant included a copy of a letter from
her representative to the EEO Processing Center dated April 1, 1998,
requesting a hearing before an EEOC AJ.<2> The agency's Senior EEO
Complaint Processing Specialist stated to the Commission in a letter
dated September 17, 1998, that complainant received her appeal rights
at her address and did not request a hearing before an AJ or a decision
on the record.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614. 108(f) provides that the agency shall
provide the complainant with a copy of the investigative file, and shall
notify the complainant that within 30 days of receipt of the investigative
file, the complainant has the right to request a hearing before an AJ
or may receive an immediate final decision. The evidence submitted
by complainant on appeal indicates that her representative requested a
hearing on her behalf on April 2, 1998, within the applicable time frame.
The agency claims that a request for a hearing was not received, however,
the Commission is persuaded by the copy of the Domestic Return Receipt
upon which was written ""Tsai & Douglas hearing request." The Commission
therefore, finds that complainant was denied the opportunity for an
administrative hearing and determines that the proper course of action is
to VACATE the agency's final decision and REMAND complainant's complaint
for a hearing before an EEOC AJ.
CONCLUSION
The agency's final decision is VACATED and complainant's complaint is
REMANDED to the agency for further processing in accordance with the
order below.
ORDER
The agency is ORDERED to take the following actions:
1. Within 10 days of the date on which this decision becomes final the
agency shall notify the appropriate EEOC District Office of complainant's
request for a hearing.
2. The agency shall submit a report of compliance, including evidence
that the above action has been taken, to the Compliance Officer, as
referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64 Fed. Reg. 37,644,
37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If
the complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be
terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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 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
June 8, 2000
________________________ _______________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________ __________________________
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 Complainant included a copy of a Domestic Return Receipt showing the
date of delivery to the EEO Processing Center on April 2, 1998.