0120161347
05-27-2016
Cary R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cary R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161347
Agency No. 4G-700-0023-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 17, 2016, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
On December 7, 2015, Complainant, a job applicant for a City Carrier position at the Agency's Covington, Louisiana Post Office, initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On March 2, 2016, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of disability when:
on October 14, 2015, he was not provided with an interpreter during an interview for employment.
In its March 17, 2016 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on December 7, 2015, which it found to be beyond the 45-day limitation period.
Complainant, on appeal, stated that his December 7, 2015 contact was timely. For instance, Complainant stated that he had trouble contacting someone at the Agency's Covington, Louisiana Post Office so he could file an EEO complaint. Complainant stated that he then checked the EEOC website but "had difficulty understanding what I need to do to file a complaint instead I called the 800 number to seek clarification (This was October 26, 2015 when I was not getting any response from [Postmaster Covington Louisiana]). No one was available at the moment to take my call via video relay service. When I learned EEOC only take calls on Wednesdays, I end up having to wait and call again the following Wednesday. When I finally got someone (two weeks later), I learned I have to file with a different department, EEO, at a different number. When I called the number EEOC gave me, video relay operator stated the number was no good. I had to wait the following Wednesday to speak with a live person. I also got email from EEOC to obtain information. That went like another two weeks then I finally got a response from EEO via email which was like December 2. Yes, it took me a whole month to reach EEO via Sorenson Video Relay service and Email."
The record contains a copy of Complainant's email dated December 5, 2015 to the Commission's Office of Federal Operations. Therein, Complainant stated I have tried to file a discrimination complaint against Covington, Louisiana United States Post Office (USPS) since October 26, 2015. To this day, I've been unable to reach anyone."
The record also contains a copy of Complainant's email dated December 7, 2015 to the Agency's Tampa, Florida Headquarters. Therein, Complainant stated that he was provided the Agency's direct email address to request a pre-complaint package by one of the Commission's Office of Federal Operations Officers of the Day. On the same day, December 7, 2015, the EEO Data Analyst of the Agency's Tampa, Florida Headquarters responded asking Complainant to "please send us your mailing address so we can send you a precomplaint package. After we receive your mailing address, we will send you a package that should arrive in 3-4 days."
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Failure to bring an alleged discriminatory matter to the attention of an EEO Counselor in a timely manner pursuant to regulation, and absent circumstances requiring extension, see 29 C.F.R. � 1614.105(a)(1) mandates dismissal of complaints for untimeliness. 29 C.F.R. � 1614.107(a)(2).
We note that Complainant, on appeal, argues that he had no actual or constructive knowledge of the limitation period for contacting EEO Counselor. Complainant stated as a deaf person, "I do not have that luxury of being able to pick up the phone and call you direct. As I already explained above, I have to go through other mode of communication with people like EEOCEEO." Where, as herein, 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 "the agency has the burden of proving evidence and/or proof to support its final decisions," see also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
In this case, we find that the Agency provided no documentation reflecting Complainant's actual or constructive knowledge of the 45-day limitation period. We are therefore persuaded by Complainant's assertions that he had no knowledge of the limitation period until more than 45 days after the most recent discriminatory event purportedly occurred. Therefore, the Agency improperly dismissed the formal complaint for untimely EEO Counselor contact.
The Agency's dismissal of the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 27, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161347
2
0120161347
6
0120161347