Betty L. Ocilka, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2000
01980919 (E.E.O.C. Mar. 17, 2000)

01980919

03-17-2000

Betty L. Ocilka, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Betty L. Ocilka v. United States Postal Service

01980919

March 17, 2000

Betty L. Ocilka, )

Complainant, )

)

v. ) Appeal No. 01980919

) Agency No. 4-C-440-0274-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination

in violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. 791 et seq.<1> The final agency decision was issued on October

23, 1997. The appeal was received by the Commission on November 10,

1997. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified and hereinafter cited as 29 C.F.R. �1614.402(a)),

and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. �1614.405).

ISSUE PRESENTED

The issue presented is whether the agency properly dismissed the complaint

on the grounds that complainant failed to file her formal EEO complaint

in a timely manner.

BACKGROUND

Complainant initiated contact with an EEO Counselor on March 12, 1997.

Complainant's attorney received on April 17, 1997, a notice of right to

file individual complaint. The notice stated that complainant has the

right to file a formal complaint within 15 calendar days of the date that

the notice is received. In a formal EEO complaint dated April 29, 1997,

complainant claimed that she was discriminated against on the basis of

her physical disability (job-related injury) when on January 31, 1997,

she was notified that she was being reassigned from a modified letter

carrier position to a part-time flexible position.

In its final decision, the agency dismissed the complaint on the grounds

that it was not filed in a timely manner. According to the agency,

complainant received her notice of right to file a discrimination

complaint on April 17, 1997, but did not file her formal complaint

until May 16, 1997, after the expiration of the 15-day filing period.

The agency determined that the formal complaint was received in an

envelope bearing the postmark May 16, 1997. A copy of this envelope is

contained in the record.

On appeal, complainant submits a sworn affidavit in which she states

that she received the notice of right to file an individual complaint on

April 17, 1997, and that she submitted her formal complaint by overnight

mail. We note that complainant states that she is referring to Agency

No. 4-C-440-0162-97. In support of her appeal, complainant submits a copy

of an express mail envelope that indicates it was mailed on April 29,

1997, to the Senior EEO Specialist. Complainant also submits a letter

dated April 29, 1997, from her attorney to the Senior EEO Specialist.

This letter indicated that a complaint was being filed in Agency

No. 4C-440-0274-97.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall

dismiss a complaint that fails to comply with the applicable time limits

contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency

extends the time limits in accordance with � 1614.604(c).

The record reveals that complainant received a notice of the right to

file a formal discrimination complaint on April 17, 1997. Complainant

maintains that she timely mailed her formal complaint to the agency on

April 29, 1997. The agency determined that the formal complaint was

received in an envelope postmarked May 16, 1997, after the expiration

of the 15-day filing period. We note that in her affidavit complainant

referenced a complaint number (Agency No. 4-C-440-0162-97) that is

not the matter presently under review (Agency No. 4-C-440-0274-97).

In light of the overnight envelope postmarked April 29, 1997, and the

accompanying letter with the same date from complainant's attorney,

it appears that a complaint was filed at that time. However, it is not

clear whether the complaint filed at that time was the instant complaint

or a different EEO complaint. The record provided by the agency contains

a copy of an envelope with the postmark May 16, 1997. It is necessary

that a supplemental investigation be undertaken to determine whether

the instant complaint was filed on April 29, 1997, or May 16, 1997.

Accordingly, the agency's dismissal of the complaint on the grounds of

untimeliness is VACATED. This matter is hereby REMANDED for further

processing pursuant to the ORDER below.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

The agency shall conduct a supplemental investigation to determine when

complainant filed her formal EEO complaint in Agency No. 4-C-440-0274-97.

In making this determination, the agency shall attempt to ascertain what,

if anything, was filed by complainant in the express mail envelope dated

April 29, 1997, and the envelope postmarked May 16, 1997. The agency

shall insert in the record documentation of its findings in this matter.

Thereafter, the agency shall decide whether to process or dismiss the

complaint. The supplemental investigation and issuance of the notice

of processing and/or final decision must be completed within thirty

(30) calendar days of the date this decision becomes final. A copy of

the final decision and/or notice of processing must be submitted to the

Compliance Officer, as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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:

March 17, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

Federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.