01976584
08-19-1999
Vilena McCauley, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vilena McCauley v. United States Postal Service
01976584
August 19, 1999
Vilena McCauley, )
Appellant, )
) Appeal No. 01976584
v. ) Agency No. 4F-956-1074-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
)
DECISION
Appellant timely filed an appeal with the Commission from a final
decision of the agency concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. � 2000e et seq, and the Age Discrimination in Employment Act
of 1967, 29 U.S.C. � 621 et seq. The appeal is accepted in accordance
with EEOC Order No. 960, as amended. See 29 C.F.R. � 1614.402(a).
The issue presented in this case is whether appellant timely requested
a hearing. Briefly, appellant alleged that the agency discriminated
against her on the bases of race, color, sex, age, and reprisal, by
impeding her upward mobility. She also alleged that the agency failed
to comply with a previous Commission decision. The agency investigated
the complaint and notified appellant of her right to request a hearing.
Exactly when appellant received that notice is the principal matter in
contention. A copy of a mailing envelope for the investigative file
and hearing notice, set forth as attachments 1 and 2 of appellant's
appeal statement, includes the following handwritten notations: "N/L
5/21/97;" and "Rec'd 5-31-97." The burden to establish a complainant's
noncompliance with the procedural requirements set forth in the
Commission's regulations rests with the agency. See generally Marshall
v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991)
(agency's decision to dismiss complaint on procedural grounds must
be supported by evidence of record). The agency states in its final
decision that appellant received the notice of her right to request a
hearing on May 21, 1997. The file does not, however, contain a certified
return receipt or other documentation that corroborates a receipt date of
May 21st. On appeal, appellant argues that she signed for the notice at
her local post office on May 31, 1997. This is appellant's explanation
for the presence of the notation indicating receipt on May 31, 1997.
In the absence of any evidence to the contrary from the agency, we find
that appellant received notice of her right to request a hearing on May
31, 1997, not on May 21, 1997, as the agency asserts.
Pursuant to EEOC Regulation 29 C.F.R. � 1614.108(f), the notice informed
appellant that she had 30 calendar days from the date she received the
investigative file to request a hearing. Since she received the notice
on May 31, 1997, she had until June 30, 1997 to request a hearing.
Appellant submitted a document entitled, "Proceed to Formal Stage of
EEO Complaint Process," dated June 18, 1997, and postmarked July 28,
1997, two days before the June 30th deadline. We therefore find that
the request is timely.
The agency states in its final decision that appellant's request
is unresponsive as to whether appellant desired a hearing or a final
decision. Appellant clearly stated, however, that she wanted the agency
to "process her complaint [at] the formal stage of the EEO process."
From the context, it is easy to determine that appellant plainly meant
"hearing," when she referred to the "formal process." We therefore find
that appellant timely requested a hearing and will order the agency to
process her request.
ORDER (E1092)
The agency is ORDERED to refer Complaint No. 4F-956-1074-96
to an administrative judge for a hearing, in accordance with 29
C.F.R. �1614.109. A copy of the agency's letter of acknowledgment to
appellant and a copy of the notice that transmits the hearing request
must be sent to the Compliance Officer as referenced below.
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(c) (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 the
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 the
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. � 1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (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:
August 19, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations