01a40802
02-27-2004
Elizabeth J. Paszko, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth J. Paszko v. United States Postal Service
01A40802
February 27, 2004
.
Elizabeth J. Paszko,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40802
Agency No. 1E-554-0014-03
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
On December 27, 2002, complainant initiated contact with an EEO Counselor.
Informal efforts to resolve her concerns were unsuccessful.
In her formal complaint, filed on March 1, 2003, complainant alleged
that she was subjected to discrimination on the bases of disability and
age when on May 18, 2002, she was placed in a residual vacancy without
regard to her medical restrictions.
In its final decision dated October 17, 2003, the agency dismissed the
complaint for untimely EEO Counselor contact.
Complainant argues on appeal that her delay in contacting an EEO Counselor
with regard to her assignment to the residual vacancy was due to not
being informed of the limitation period for contacting an EEO Counselor.
Complainant claims that in December 2002, when she approached the
union for help the union told her to file an EEO complaint and she
then contacted the EEO Counselor. The agency has presented no evidence
that EEO posters were on display, nor has the agency otherwise refuted
complainant's contention that she lacked knowledge of the applicable
limitation period for contacting an EEO Counselor. 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 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 that the agency has the burden of providing evidence and/or proof
to support its final decisions. See Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992).
Accordingly, the agency's final decision dismissing complainant's
complaint is VACATED and the complaint is REMANDED for further processing
as ordered below.
ORDER (E0900)
The agency is ORDERED to conduct a supplemental investigation with regard
to the issue of whether complainant had actual or constructive notice
of the time limitation for contacting an EEO Counselor. If an EEO poster
was displayed at complainant's work facility during the relevant period,
the agency shall supplement the record with a copy of the poster and/or
provide an affidavit from an agency official who has personal knowledge
of the existence of the posters. Thereafter, the agency shall either
issue a notice of processing or a final decision, within forty-five
calendar days from the date that this decision becomes final. A copy
of the notice of processing or final agency decision must be sent to
the Compliance Officer, as referenced below.
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
February 27, 2004
__________________
Date