01990435
11-19-1999
Dennis D. Petrack, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis D. Petrack, )
Complainant, )
)
v. )
) Appeal No. 01990435
William J. Henderson, ) Agency No. 4-C-442-0178-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 22, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated October 16, 1998,
dismissing his complaint on the grounds that it was untimely filed.<1>
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Complainant filed an EEO complaint dated July 14, 1997 alleging that
he was subjected to discrimination based on sex (male), age (42),
physical disability (back), mental disability (stress) and retaliation.
Specifically, complainant alleged that on May 22, 1997 the Acting Manager
Human Resources made a job offer without giving him an extension for
Office Workers Compensation Program (OWCP) disability.
The agency dismissed complainant's complaint on the grounds that it was
untimely filed. The FAD indicated that complainant was notified of the
right to file an individual complaint, and the fifteen (15) day time
limitation, on July 14, 1997. According to the agency, complainant did
not file his complaint until September 18, 1998.
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. �1614.105(d)) requires
that after a complainant contacts an EEO Counselor, and the matter
has not been resolved, �the aggrieved person shall be informed in
writing by the Counselor ... of the right to file a discrimination
complaint.� The notice shall inform the complainant of the right
to file a discrimination complaint within 15 days of receipt of
the notice. See 29 C.F.R. �1614.105(d). A complaint must be filed
within 15 days of receipt of the notice. See 29 C.F.R. �1614.106(b).
EEOC Regulation 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified 29
C.F.R. �1614.107(a)(2)) provides that an agency shall dismiss a complaint
that fails to comply with the time limits contained in �1614.106.
In the instant case, the agency contends that complainant faxed his
complaint to the agency on September 18, 1998, over a year after he
received the notice of his right to file. Although the record contains a
copy of the notice and a Domestic Return Receipt signed by complainant
on July 14, 1997, the agency has not provided evidence of when the
complaint was filed. The only copy of the complaint in the record,
provided by complainant, is dated July 14, 1997. Moreover, complainant
has provided an unclear copy of a Domestic Return Receipt that appears
to have been signed by the EEO counselor on July 17, 1997. Clearly,
it is the burden of the agency to have evidence or proof to support its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Accordingly, the Commission finds
that the agency's dismissal of complainant's complaint on the grounds
that it was untimely filed is not supported by the record and is hereby
REVERSED. Complainant's complaint is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded claims in accordance with
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 (M1199)
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). 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 19, 1999
____________________________
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:
______________________
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.