01A31686_r
10-15-2004
Deborah Mathias, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Deborah Mathias v. United States Postal Service
01A31686
October 15, 2004
.
Deborah Mathias,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31686
Agency No. 4E-800-0091-01
Hearing No. 320-A2-8010X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final order concerning her equal employment opportunity (EEO) 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 record reveals that during the relevant time, complainant was
employed as a City Carrier during her probationary period at the agency's
facility in Aspen, Colorado. Believing that she was the victim of
unlawful employment discrimination on the basis of sex, complainant
contacted the EEO office on November 14, 2000. Informal efforts to
resolve complainant's concerns were unsuccessful.
On March 21, 2001, complainant filed a formal complaint claiming that
she was discriminated against when on May 10, 2000, she was terminated
during her probationary period as a City Carrier.
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ).
On July 17, 2002, the agency filed a Motion to Dismiss, on the grounds
that complainant did not contact an EEO Counselor within 45 days of
the alleged discriminatory event and failed to file a formal complaint
within 15 days of receipt of the EEO Counselor's notice of right to file
a formal complaint. On July 19, 2002, the AJ issued a notification to
complainant that she had until August 2, 2002, to submit a response to
the agency's motion. On August 2, 2002, the AJ received complainant
's request to extend the deadline for submission of a response to
the agency's motion. On August 4, 2002, the AJ granted complainant's
request for an extension and indicated that she had until September 5,
2002, to submit a response to the agency's motion.
On September 30, 2002, after receiving complainant's response, the
AJ dismissed the instant EEO complaint on the grounds of untimely EEO
Counselor contact. The AJ found that the alleged discrimination occurred
on May 10, 2000, but that complainant did not initiate contact with
an EEO Counselor until November 14, 2000, beyond the forty-five-day
time limitation. The AJ noted that the only explanation provided
by complainant was that she was unaware of an avenue of recourse and
that no one advised her of the proper procedures. The AJ found that
complainant provided no credible explanation for the delay in contacting
an EEO Counselor. The AJ also found that an EEO poster is on display
in the break room of complainant's workplace. Finally, the AJ found that
complainant failed to timely request a hearing.
On January 3, 2003, the agency issued a final action implementing the
AJ's Order of dismissal.
On appeal, complainant contends that on May 23, 2000, she sent a
letter to an agency Trainer "in hopes of getting her feedback but got
no response." Complainant further contends that she never received
a response letter from the manager of postal operations that he had
"supposedly sent on September 6, 2000," which she received by facsimile
on November 15, 2000. Complainant states "this gave me no direction
as to how I could proceed with my complaint other than outlining the
reasons for my reported dismissal nor did it outline my appeal rights."
The record contains a copy of complainant's letter dated May 23, 2000,
to an Employee Relations Specialist (Trainer) at the agency's Grand
Junction, Colorado facility. Therein, complainant stated that she would
like to seek the Employee Relations Specialist's assistance in regaining
her position. We determine that complainant's correspondence with an
agency official in May 2000, cannot be construed as contact with agency
official reasonably connected with the EEO process with the intention
of pursuing the EEO complaint process. The May 23, 2000 correspondence
relates to complainant's interest in regaining her position, and does not
manifest an intention to pursue the EEO complaint process. Allen v. USPS,
EEOC Request No. 05950933 (July 8, 1996).
However, we note that complainant further asserts that she was unaware
of the manner in which to pursue the EEO complaint process. On this
issue, we note that the record contains a copy of a memorandum entitled
�Memorandum For: Supervisors, Managers and Postmasters� dated April 29,
1999, from an EEO Complaints Processing Specialist upon which the AJ
relied in dismissing the instant complaint. Therein, the management
official of the agency's Aspen, Colorado facility signed and dated
the memorandum December 9, 1999, stating that an EEO poster is on
display on the bulletin board in the break room. We have held that a
generalized affirmation that an agency posted EEO information, without
specific evidence that the poster contained notice of the time limits,
is insufficient for constructive knowledge of the time limits for EEO
Counselor contact. See York v. Department of Veterans Affairs, EEOC
Request No. 05940575 (November 3, 1994); Pride v. United States Postal
Service, EEOC Request No. 05930134 (August 19, 1993). In addition,
it well-settled that 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 of timeliness." Williams v. Department
of Defense, EEOC Request No. 05929596.
Here, the agency's generalized statement that an EEO poster is posted
in a break room fails to provide specific affirmation that a poster
containing the applicable time limit was posted in a place where
complainant would/should have seen it during the relevant time period.
Finally, the Commission notes that the AJ determined that complainant did
not timely request a hearing. The Commission disagrees. Specifically,
the record reflects that complainant received the Notice of Right to
Request a Hearing on December 13, 2001. Complainant was advised therein
that she had 30 days from the date of receipt of the notice to request
a hearing. Complainant's request for a hearing was postmarked Monday,
January 14, 2002. The Commission notes that the thirtieth day from
the date of receipt of the notice was January 12, 2002, a Saturday.
EEOC Regulation 29 C.F.R. �1614.604(d) provides that if the last day
of a time period falls on a Saturday, the period shall be extended
to include the next business day. Therefore, complainant's request
postmarked January 14, 2002, the following Monday, was timely.
Accordingly, the agency's final action is REVERSED and this complaint
is REMANDED to the
agency for further processing in accordance with this decision and the
ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the Denver Field Office
the request for a hearing within fifteen (15) calendar days of the date
this decision becomes final. The agency is directed to submit a copy of
the complaint file to the EEOC Hearings Unit within fifteen (15) calendar
days of the date this decision becomes final. The agency shall provide
written notification to the Compliance Officer at the address set forth
below that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
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
October 15, 2004
__________________
Date