01A13370
07-24-2003
Perk O. Ostrewich, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Perk O. Ostrewich v. United States Postal Service
01A13370
July 24, 2003
.
Perk O. Ostrewich,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A13370
Agency No. 1-G-771-0110-98
Hearing No. 330-99-8269X
DECISION
Complainant timely initiated an appeal from the agency's final action
concerning his equal employment opportunity (EEO) 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
The record reveals that complainant filed a formal EEO complaint
alleging that the agency discriminated against him on the bases of race
(Caucasian), color (White), national origin (Polish), and in reprisal
for prior EEO activity when on June 17, 1998 he was given a notice
changing his off days and was not allowed to sign the vacation roster.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge. On September 8, 1999, the Administrative Judge
issued a decision without a hearing, finding no discrimination which
the agency fully adopted as its final action on November 8, 1999.<1>
Complainant filed an appeal with this Commission on December 22,
1999. In a letter attached to his appeal form, complainant explained
that he did not respond to what we presume was the Administrative
Judge's Acknowledgment and Order because it was sent to an address
where he neither ever lived nor ever received mail. We note that the
Administrative Judge's decision and the agency's final action were also
sent to that same address, and it was not until complainant contacted
the �Memphis EEO� that the agency's final action was sent to his correct
address and received on December 8, 1999. It is not clear from the
record whether complainant ever received a copy of the Administrative
Judge's decision.
The Commission requested that the agency submit the complaint file
to the Office of Federal Operations. See 29 C.F.R. � 1614.403(e).
Despite substantial efforts on the part of the agency to locate the
complaint file, it has been unable to do so. Ultimately, the agency
requested permission from the Office of Federal Operations to attempt
to reconstruct the complaint file with the help of the Administrative
Judge and complainant. The Administrative Judge cooperated with the
agency's request and forwarded a copy of her decision to the agency.
However, complainant did not respond.<2> We will therefore review,
de novo, the record that is before us. See 29 C.F.R. � 1614.405(a).
The Commission has before it a copy of the agency's response to what
we presume is the Administrative Judge's Acknowledgment and Order,
the Administrative Judge's decision issued without a hearing, the
agency's final action adopting the Administrative Judge's decision,
and complainant's submission on appeal.<3> In his submission on appeal,
complainant does not argue that there were any genuine issues of material
fact in dispute which a hearing would have resolved, nor does he argue
that a hearing would produce evidence that would support a finding
that the agency was motivated by discriminatory animus toward him.
We thus conclude that the issuance of a decision without a hearing
was appropriate. Upon review of the Administrative Judge's decision,
we find that she correctly determined that agency was not liable for a
violation of Title VII. We therefore discern no basis to disturb her
decision, and we AFFIRM the agency's final action.
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
July 24, 2003
__________________
Date
1 We note that in her decision, the Administrative Judge identified
complainant's national origin as �Anglo,� but the Commission concludes
from a prior decision, Ostrewich v. United States Postal Service, EEOC
Appeal No. 01991151 (April 16, 2002), that complainant's national origin
is Polish.
2 The agency sent the request for cooperation in reconstructing the file
to the same address which the Office of Federal Operations has as being
complainant's address of record.
3 The agency's response states that the complaint file indicates
that complainant was absent during the period the vacation roster was
circulated, that he never requested subsequently to sign it, and that
complainant, along with other similarly situated employees, had their off
days changed for business related reasons. The response also requests
that the Administrative Judge consider issuing a decision without holding
a hearing.