0120083401
01-09-2009
Arlene V. Kimble, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arlene V. Kimble,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083401
Agency No. 4J-460-0097-07
(also known as 4J-460-0076-08)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated July 11, 2008, dismissing her 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
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
On August 24, 2007, complainant initiated contact with an EEO Counselor
(EC1) alleging that the agency discriminated against her based on race
(African-American), national origin (Africa), sex (female), age (over
40), disability (foot problems) and reprisal for prior protected EEO
activity when: (1) on July 13, 2007, she was issued a letter of warning
for unexcused absences, (2) on August 14, 2007, her supervisor (S1)
denied her authorization for medical care for an on-the-job injury, and
(3) on September 20 and 26, 2007, she was issued seven day suspensions.
The pre-complaint was docketed as Agency No. 4J-460-0097-07.
In a letter and Notice of Right to File (Notice) sent via certified
mail on November 20, 2007, EC1 informed complainant of her right to
file a formal complaint within fifteen days of receipt of the Notice or
risk complaint dismissal if she filed outside the 15-day time period.
The record shows that there were three attempts to deliver the Notice -
one on November 21, November 28, and December 6, 2007. The Notice was
returned "unclaimed" on December 6, 2007.
In a formal complaint postmarked June 7, 2008, complainant alleged that
the agency subjected her to a hostile work environment on the bases of
race, national origin, sex, age, disability and reprisal when S1 denied
her treatment authorization for an on-the-job injury and S1 and a manager
treated her disparately. Complainant also noted that she no longer
wished to pursue her claim regarding the July 2007 letter of warning.
The formal complaint was identified as Agency No. 4J-460-0076-08.
In its final decision, the agency dismissed the complaint, pursuant to 29
C.F.R. � 1614.107(a)(2), due to untimely filing of the formal complaint.
The instant appeal followed.
Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), due to the untimely filing of the formal complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so. Moreover, the
time limits are subject to waiver, estoppel, and equitable tolling. 29
C.F.R. � 1614.604(c).
The record in this case does not contain any documentation reflecting
that complainant received the Notice. In fact it reflects just the
opposite, as the certified letter containing the Notice was returned
to the agency as not delivered. Where, as here, there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness." Guy,
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). In addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated that
"the agency has the burden of providing evidence and/or proof to support
its final decisions." See also Gens v. Department of Defense, EEOC
Request No. 05910837 (January 31, 1992). As complainant filed her formal
complaint on June 7, 2008, and there is no evidence of complainant's
receipt of the Notice, we find complainant's formal complaint should be
deemed timely filed.
The agency's final decision dismissing complainant's complaint on
the grounds that it was untimely filed is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded complaint in accordance
with 29 C.F.R. � 1614.108 et seq. The agency shall acknowledge to the
complainant that it has received the remanded claims within thirty (30)
calendar days of the date this decision becomes final. The agency shall
issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
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.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M0408)
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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 9, 2009
__________________
Date
2
0120083401
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120083401