01A42276
06-29-2004
Yash R. Patel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Yash R. Patel v. United States Postal Service
01A42276
June 29, 2004
.
Yash R. Patel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 01A42276
Agency No. 4H-300-0315-01
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his consolidated complaints 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission VACATES and REMANDS this case
for further processing.
The record reveals that during the relevant time, complainant was
employed as a Mail Processor, Grade Level 4, at the agency's General
Mail Facility. Complainant sought EEO counseling and subsequently
filed a formal complaint on September 28, 2001, alleging that he was
discriminated against on the bases of race (Indian), national origin
(Indian), sex (male), religion (Hindu), color (not specified), age
(D.O.B. October 8, 1956), and in reprisal for prior EEO activity<2> when:
(1) Since April 2001 and before, complainant had not been given
opportunities for higher level assignments;
(2) Complainant was subjected to violent behavior by co-workers; and,
On June 8, 2001, complainant's request for a revised schedule was denied.
Complainant prematurely requested a hearing, and on January 23, 2002, an
EEOC Administrative Judge dismissed the hearing request indicating that
complainant could resubmit his request after the expiration of 180 days.
There is no evidence to suggest that complainant did so. Despite that
it is the agency's burden pursuant to 29 C.F.R. � 1614.108(f) to ensure
that such information is timely furnished to the complainant, in its FAD,
the agency admits that it is uncertain as to whether complainant ever
received a copy of the report of investigation (ROI) and the right to
request a hearing within thirty days of receipt of the ROI. The agency
issued a FAD on January 22, 2004 finding that the complainant failed
to establish a prima facie case of discrimination on the bases of race,
color, religion, sex, national origin, age discrimination, or reprisal.
The Commission notes that even if the ROI was received by complainant,
the investigation was woefully inadequate. We first note that the
record lacks any information as to the similarly situated employees whom
complainant claims were treated more favorably than he was. The names
of such individuals were specifically stated in the EEO Counselor's
report as well as in complainant's affidavit. Furthermore, the file
lacked the affidavits of other relevant individuals. Specifically, the
affidavit of the Manager of Distribution Operations is absent from the
investigatory file because she did not submit the requested material.
Likewise, no affidavit was solicited from the supervisor who allegedly
had authority regarding higher level assignments.
It is the agency's responsibility to develop an impartial and appropriate
factual record that allows a reasonable fact-finder to draw conclusions
as to whether discrimination occurred. 29 C.F.R. � 1614.108(b); see
also EEOC Management Directive 110, November 9, 1999 (EEO MD-110) at
Chapter 6. We find that because of the cited deficiencies noted above,
the record is inadequately developed to make a determination on the merits
of complainant's claim. Therefore, after a careful review of the record,
we VACATE the final agency decision and REMAND this matter to the agency
for a supplemental investigation consistent with the ORDER below.
ORDER
On remand, the agency is ordered to conduct a supplemental investigation,
which shall include the following actions:
The agency shall supplement the record with affidavits and documentation
regarding similarly situated employees whom complainant alleges were
treated more favorably than he was. The agency shall also provide
documentation and witness affidavits regarding the violent behavior
alleged by complainant. The agency shall further supplement the record
with affidavits from all agency officials responsible for the decisions
to deny complainant advancement opportunities and a revised schedule,
detailing the reasons behind such decisions and specifying agency actions
in comparative situations against other similarly situated employees
during the relevant time period.
2. The agency shall ensure that the investigator obtain any other
affidavits, records or statistics not specifically requested in this
Order, and not inconsistent with this decision, which may be relevant
in determining the merits of complainant's complaint.
3. The agency shall ensure that the investigator completes a supplemental
investigation within sixty (60) calendar days of the date this decision
becomes final. The agency shall issue complainant a copy of the Report
of Investigation, including the matters included in the supplemental
investigation. The agency shall notify complainant that within thirty
(30) calendar days of receipt of the Report of Investigation, he has
the right to request a hearing and decision from an EEOC Administrative
Judge or may request an immediate final decision pursuant to 29 C.F.R. �
1614.110.
The agency shall issue a compliance report as referenced immediately
below. This report must include a copy of the supplemental investigative
report and either complainant's request for a hearing, or the agency's
final action.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 29, 2004
__________________
Date
1Pursuant to 29 C.F.R. � 1614.606, the agency
consolidated Agency Case Nos. 4-H-300-0315-01 and 4-H-300-03160-01 into
the instant agency number, 4H-300-0315-01, for joint processing.
2The record indicates, and the agency does not dispute, that complainant
participated in prior protected activity, but it is unclear under which
statutes such activity arose.