05a41039
04-25-2005
Richard H. Cox, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard H. Cox v. United States Postal Service
05A41039
04-25-05
.
Richard H. Cox,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A41039
Appeal No. 01A33770
Agency No. 4-H-300-0297-99
DENIAL
The present request for reconsideration of the decision in Richard
H. Cox v. United States Postal Service, EEOC Appeal No. 01A33770
(November 6, 2003) was docketed on July 19, 2004. EEOC Regulations
provide that the Commission may, in its discretion, grant a request
to reconsider any previous Commission decision where the requesting
party demonstrates 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. See 29 C.F.R. � 1614.405(b). For the reasons
set forth herein, the decision in EEOC Appeal No. 01A33770 remains the
Commission's final decision with modification.
ISSUE PRESENTED
The issue presented herein is whether the previous decision erred when it
affirmed the agency's final order which found that complainant failed to
prove that the agency discriminated against complainant on the bases of
race (Caucasian), sex (male), and/or disability (degenerative arthritis)
when he was notified on September 3, 1999 that he did not meet the
requirements of the Associate Supervisor Program (ASP or Program).
BACKGROUND
During the relevant time, complainant was employed as a Letter Carrier at
the Marietta, Georgia Post Office. Complainant applied for an Associate
Supervisor position in Customer Services and Distribution Operation for
the Atlanta District under a vacancy announcement issued on July 12, 1999.
Complainant took the ASP examination, and by letter dated September 3,
1999, the agency notified complainant that he had received an overall
rating of �ineligible� for the Program.
Complainant sought EEO counseling and subsequently filed a formal
complaint. At the conclusion of the agency's investigation, on May
25, 2001, the agency provided complainant with a copy of the report
of investigation (ROI) and advised him of his right to request a final
agency decision or a hearing before an EEOC administrative judge (AJ).
By letter dated June 9, 2001, complainant requested a final agency
decision (FAD). However, when the agency failed to issue a decision,
complainant withdrew his request for a FAD on February 3, 2002, and
requested a hearing before an AJ. By letter dated July 12, 2002,
the agency informed the EEOC Atlanta District Office that complainant
had first requested a FAD, and that the complaint had been assigned to
an EEO Compliance and Appeals Specialist for a decision to be issued.
On May 9, 2003, the agency issued a FAD, finding no discrimination.
In its FAD, the agency found that complainant was ineligible for
consideration because he failed to follow the instructions given for the
written examination and failed to provide all pertinent information for
a narrative. Although complainant averred that many members of the ASP
class did not have the education or years of experience the he had, that
he scored as high as 100 on parts of the ASP examination, and that 80%
of the selectees were African-American, the agency found that complainant
failed to show the reasons provided by the agency were untrue, that is,
that the reasons were pretext for discrimination. The agency further
found that complainant failed to establish that he was discriminated
against based upon his disability because he failed to show that he was
limited in any major life activity.
Complainant filed an appeal from the agency's FAD on June 13, 2003.
The appeal file reflects that the Commission granted two extensions
of time to complainant's attorney to file a brief in support of the
appeal. Complainant's attorney, however, failed to submit a statement.
Complainant submitted a statement dated June 13, 2003, communicating,
among other things, that he was �confused about whether or not [he]
should appeal a FAD that . . . should have never been issued.� He also
explained that, on or about September of 2002, he was informed that
his complaint had been subsumed into the class complaint of Glover, et
al. v. United States Postal Service, Hearing No. 320-A2-8011X, Agency
No. CC-801-0015-99 (Settlement agreement approved and signed by the EEOC
Administrative Judge on June 10, 2004).
On November 6, 2003, the Commission issued a decision in which we
affirmed the agency's FAD because a preponderance of the evidence did
not establish that discrimination occurred. The Commission docketed
the subject request to reconsider on July 19, 2004.
ANALYSIS AND FINDINGS
The threshold matter in the present case is whether the agency properly
issued the May 9, 2003 FAD. As stated previously, complainant requested
a FAD on June 9, 2001. After nearly eight months had passed without the
agency issuing the requested FAD, complainant requested a hearing on
February 3, 2002. The agency then informed the EEOC Atlanta District
Office that complainant had first requested a FAD,<1> and on May 9,
2003, the agency issued a FAD, finding no discrimination.
The Commission is greatly troubled by the length of time the agency
took to issue a decision in this matter, and we remind the agency that
29 C.F.R. � 1614.110 (b) requires that it issue a FAD within 60 days
of receiving notification that a complainant has requested an immediate
decision from the agency. Nonetheless, we find that, since complainant
first requested a FAD, the FAD was properly issued.
Complainant also provides documentation that, on or about September of
2002, he was informed that his complaint had been subsumed into Glover,
et al. v. United States Postal Service, supra. Moreover, complainant
completed a claim form for individual relief as a member of the Glover
class complaint.<2>
The Commission finds that complainant qualifies as a member of the
Glover class. We further find that, to the extent that the agency
issued a decision in the present complaint finding no discrimination on
the basis of disability, that portion of the FAD, and the Commission's
decision affirming that portion of the FAD, must be vacated in light
of complainant's membership in the Glover class. Accordingly, the
Commission vacates the agency's finding of no discrimination on the
basis of disability in Agency No. 4-H-300-0297-99, Appeal No. 01A33770,
and we remand this matter for further processing, as specified in the
order below.
With respect to the agency's finding of no discrimination on the bases of
race and sex, the Commission, after reconsidering the previous decision
and the entire record, finds that the request fails to meet the criteria
of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request. The decision in EEOC Appeal No. 01A33770 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
ORDER
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. Pt. 1614. The agency shall acknowledge to the complainant
that it has received the vacated claim of disability discrimination
within thirty (30) calendar days of the date this decision becomes final.
The agency shall process complainant's claim form for individual relief
as a member of the Glover class in a manner consistent with all terms
set forth in the Glover settlement agreement.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
___04-25-05_______________
Date
1 We note that a hearing was conducted
on March 19 and April 23, 2003, regarding a second complaint (Agency
No. 4-H-300-0215-01, Hearing No. 110-A2-8433X-PD) filed by complainant.
Based upon a review of the AJ's decision in the second complaint, it does
not appear that complainant raised the issue of his present complaint
with the AJ during that hearing.
2 The Glover class members are defined as:
Those persons employed by the agency throughout the United States between
January 1, 1992 and the present while in permanent rehabilitation
positions who were allegedly denied promotional and/or advancement
opportunities allegedly due to discrimination on the basis of disability.