01984959
02-23-2000
Diane P. Fichter, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Diane P. Fichter v. United States Postal Service
01984959
February 23, 2000
Diane P. Fichter, )
Complainant, )
)
v. ) Appeal No. 01984959
) Agency No. 4-H-330-0361-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On May 29, 1998, complainant filed a timely appeal from the agency's May
1, 1998 final decision (FAD), which dismissed her formal EEO complaint
for untimely complaint filing.<1> For the reasons set forth below,
the Commission sets aside the FAD.<2>
The Commission finds the record inadequate to support the FAD's
determination that complainant received notice of the right to file a
formal EEO complaint ("the notice"), on October 3, 1997, but did not
file her complaint until December 18, 1997, well beyond the applicable
time period of 15 days.
We find that the agency's notice was not signed by an EEO Counselor until
January 15, 1998; and that the EEO Counselor who signed the notice was
not the party who counseled complainant. In addition, we find that a
memorandum to the EEO Counselor who signed the notice on January 15,
1998, indicated in a separate document that complainant filed a formal
complaint on January 29, 1998. Further, we find complainant dated her
complaint March 18, 1997, which was the date of the alleged discriminatory
incident. Near this date, complainant wrote: "FAILURE BY EEO RECIEVED
[sic] IN UNTIMELY MANNER."<3>
Accordingly, the Commission finds the agency has not met its burden of
providing a sufficient record in support of the FAD. Henry v. U.S. Postal
Service, EEOC Request No. 05940897 (May 18, 1995); Hines v. U.S. Postal
Service, EEOC Appeal No. 01923566 (May 13, 1993).
The FAD is hereby VACATED, and complainant's complaint is hereby REMANDED
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that this decision
is not a decision on the merits of complainant's complaint. The agency
shall comply with the Commission's ORDER set forth below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall obtain and provide complainant, her representative
if any, and the Commission with true copies of any and all documents
identifying with specificity the dates complainant received the following
items:
(a) the notice of final interview;
(b) the notice of the right to file a formal EEO complaint; and
(c) the agency's formal EEO complaint form.
2. If necessary, the agency shall obtain statements under oath or
affirmation from all persons with first-hand knowledge of this matter,
including complainant and her EEO Counselor(s), pertaining to when
complainant received the necessary documents to permit her to file a
formal EEO complaint in a timely manner; and when complainant filed her
formal EEO complaint in accordance with the Commission's regulations.
3. Thereafter, the agency shall issue a report of the supplemental
investigation and a letter accepting complainant's complaint for
investigation, or a new final agency decision dismissing her complaint.
A new final agency decision, dismissing complainant's complaint, shall
contain appeal rights to the Commission; and shall set forth all legal
grounds for dismissal, as well as the facts and documentation relied upon.
4. The supplemental investigation, report of supplemental investigation,
and issuance of the letter of acceptance, or new final agency decision
of dismissal, shall be completed within sixty (60) calendar days of
the date the Commission's decision becomes final in this matter. True
copies of the report of supplemental investigation, letter of acceptance
or new final agency decision of dismissal with all relevant documents,
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 (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).
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:
February 23, 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.
2The Commission notes that complainant's entire argument on appeal was
contained in her brief that was filed on July 11, 1998, well beyond the
applicable time period. Therefore, the Commission has not considered
complainant's brief. See the Commission's revised regulations at 64
Fed. Reg. 37,659 (to be codified and hereinafter referred to as 29
C.F.R. �1614.403). The Commission also notes that the agency offered no
response to complainant's appeal.
3Complainant's complaint is also devoid of an agency date stamp indicating
when the agency received her complaint.