01a61873
05-25-2006
Evette Carto, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Evette Carto,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61873
Agency No. 4K230013805
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 6, 2006, dismissing her 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(African-American), sex (female), color (Black), and disability (Lumbar
disorder and strain) when:
1. On January 11, 2005 complainant was denied upward mobility
opportunities;
2. On April 29, 2005 complainant was denied upward mobility opportunities;
3. In May 2005 complainant became aware of her nonselection for the
Associate Supervisor Program; and
4. On unspecified dates complainant was not given the opportunity to be
an Acting Supervisor.
The agency dismissed the complaint on the grounds that complainant's
filing of the formal complaint was untimely. The agency noted that
on August 25, 2005 complainant was mailed her notice of her right
to file her discrimination complaint, giving her 15 days to file a
formal complaint. The agency further noted that she did not file her
formal complaint until December 16, 2005, which is beyond the 15-day
limitation period. The agency further found that, as regards issue 1,
complainant's counselor contact on June 2, 2005 was beyond the 45-day
limitation period for an incident that occurred on January 11, 2005.
Finally, the agency found that issues 1 and 4 were raised in an earlier
EEO complaint with the agency that was subsequently settled.
We note initially 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 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 also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). In the instant case, the
agency has provided insufficient evidence that complainant received the
August 25 right-to-file notice. The agency maintains that a handwritten
note on complainant's right-to-file notice establishes that she received
it on October 9, 2005. The Commission finds, however, that it would be
speculative to conclude that the unsigned handwritten note is evidence
of receipt by complainant on the date indicated. We therefore find that
the agency has not met its burden of establishing that complainant's
formal complaint is untimely.
As regards issues 1 and 4, we note that the regulation set forth at 29
C.F.R. � 1614.107(a)(1) provides that an agency may dismiss a complaint
where the complainant has raised the same claim that is pending before or
has been decided by the agency or the Commission. The agency maintains
that issues 1 and 4 were raised in a previous complaint that has since
been settled. We note, however, that the agency has provided no evidence
to support such a claim. Finally, as regards issue 1, we find that
the agency correctly dismissed this issue for untimely EEO counselor
contact since the EEO counselor's report reveals that complainant did
not contact an EEO counselor contact until June 6, 2005, which is beyond
the 45 day limitation period. We therefore AFFIRM the FAD as regards
issue 1, and VACATE the FAD as regards issues 2, 3, and 4, and REMAND
for further development as outlined below.
ORDER (E0900)
The agency is ordered to process claims 2, 3, and 4 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 (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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
May 25, 2006
__________________
Date
2
01A61873
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036