01a01984
08-29-2000
Brenda Barber, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Brenda Barber v. United States Postal Service
01A01984
August 29, 2000
Brenda Barber, )
Complainant, )
)
v. ) Appeal No. 01A01984
) Agency No. 4A105006099
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Complainant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning her
EEO complaint. The appeal is accepted in accordance with the provisions
of 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405(b)).<1>
The issue on appeal is whether the agency properly dismissed complainant's
EEO complaint for failure to file the complaint in a timely manner.
Complainant filed a formal EEO complaint. The agency issued a final
agency decision dismissing the complaint for not being filed within the
fifteen (15) day time limitation set forth in 64 Fed.Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.107(a)(2). In the FAD, the agency stated that complainant's
attorney or a designated representative had received a Notice of Right
to File a Formal Complaint (the Notice) on August 11, 1999, but had not
filed the formal complaint until September 11, 1999.
On appeal, complainant's attorney states that he did not receive the
Notice on August 11, 1999, as suggested by the agency. Rather, according
to the attorney, he was away from the office on vacation for the entire
month of August, the Notice was received by the business next door to
his office on August 11, 1999, and he (the attorney) only received the
Notice on September 7, 1999 when he returned from vacation. The attorney
further stated that the EEO Counselor had been informed of his vacation
plans before sending the Notice and that she had called his office twice
during August, was reinformed of the vacation plans on the answering
machine, but left no telephone number where she could be reached.
Furthermore, the attorney states that in any case, the complaint was
timely filed by the complainant herself in his absence. The attorney
explained that in mid-August 1999, complainant advised him by telephone
that she had received a copy of the Notice but that it did not contain
Form 2579-A. The attorney stated that he advised complainant to ask the
EEO Counselor to provide her with the correct form and to then file the
complaint with the agency. According to the attorney, complainant called
the Counselor for the forms, but the Counselor told her to obtain the
forms from her attorney; therefore, complainant sent a copy of a letter
to the EEO Counselor, dated August 18, 1999, and asked the Counselor
to accept the letter as her formal complaint until she could obtain the
proper forms from her (complainant's) attorney.
After carefully reviewing the record, we find that the agency
improperly dismissed complainant's formal complaint for untimely filing.
Complainant's attorney's explanation of the circumstances surrounding
the filing of the formal complaint is supported by the record. We find
that, all circumstances considered, the agency should have accepted
complainant's letter of August 18, 1999 as complainant's formal
complaint. Accordingly, the agency's decision to dismissal of the
complaint for untimely filing is REVERSED and complainant's complaint
is remanded for further processing in accordance with the ORDER below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). 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 (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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
08-29-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On 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.