0120151502
11-23-2016
Livia C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Livia C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120151502
Agency No. 66000001414
DECISION
Complainant filed an appeal with this Commission, following Agency correspondence dated March 9, 2015, informing her that she could either do nothing to pursue her claims, or elect to file a formal complaint based on her claims 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.
BACKGROUND
During the period at issue, Complainant worked as a Postal Inspector for the Agency in Dulles, Virginia.
At the onset, we note that no formal complaint has been filed in this case, and consequentially, no final decision has been rendered. The following chronological annotation, however, provides relevant information indicating how it nevertheless has come under our review.
On September 12, 2014, Complainant initiated EEO Counselor contact. Complainant alleged that she was subjected to harassment and discrimination based on disability, and sex. Specifically, Complainant alleged that on June 20, 2014, Complainant's Team Leader would not provide her with a light duty assignments, as the Team Leader had done for others. Complainant asserted further that the Team Leader then reassigned Complainant's cases to other Postal Inspectors. Informal efforts to resolve her concerns were unsuccessful.
On September 17, 2014, Complainant's Representative sent the Agency correspondence stating that Complainant was informed by the Agency that her appeal was being cancelled. Complainant's Representative stated that she had previously sent Complainant's Pre-Complaint Counseling information to the Agency on August 15, 2014, and that neither Complainant nor she had heard back from the Agency.
On December 5, 2014, the Agency's Dispute Resolution Specialist (DRS) purportedly mailed Complainant and her representative the Notice of Right to File a Formal Complaint.
On March 9, 2015, Complainant's Representative sent the Agency correspondence stating that "Per our conversation we had last week, you stated that "the EEO complaint was closed." Neither [Complainant] nor myself received a copy of the closed complaint. Because we had no idea that the case was closed, we could not respond..." The Agency responded and stated that the Notice of Right to File a Formal Complaint was previously mailed to Complainant's Representative and Complainant on December 5, 2014. The letter stated Complainant could elect to file a formal complaint or do nothing.
On March 17, 2015, Complainant filed the instant appeal. On appeal, Complainant contends that she was not afforded the opportunity to request a formal hearing. Complainant contends that when the Agency's Dispute Resolution Specialist (DRS) closed her case, neither her Representative nor she was notified. Complainant states that the DRS provided her with a United States Postal Service Tracking Number which indicated that a package was delivered at her Representative's office. However, Complainant contends that her Representative does not have a mailbox at her office, that all the mail is signed for by the office's secretaries, and that they were never delivered the alleged package.
In response, the Agency argues that the Notice of Right to File (Notice) was mailed to Complainant and her Representative on December 5, 2014. The Agency states that it mailed the Notice via First Class with Signature Confirmation to the address provided by Complainant on her pre-complaint form (#2307 2390 0000 2737 1785). Additionally, the Agency states that it mailed another Notice to Complainant's Representative, also via First Class with Signature Confirmation (#9114 9011 2308 6099 8366 33). The Agency states that while the tracking system indicated that there was a failed delivery to Complainant's address, the system indicated that the Notice was delivered in/at the mailbox at Complainant's representative's office on December 8, 2014.
ANALYSIS AND FINDINGS
As discussed above, we reiterate that there has not been a formal complaint filed yet, and no Agency final decision. However, for purposes of asserting our jurisdiction in this particular instance, we shall deem the Agency's March 9, 2015 correspondence to Complainant as constructively a final decision, timely appealed to the Commission.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to comply with the 15-day time limit contained in 29 C.F.R. � 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling.
Here, the record demonstrates that Complainant clearly never received the Notice, as acknowledged by the Agency. Additionally, despite the Agency's declaration that Complainant's Representative received a copy of the Notice on December 8, 2014, Complainant's Representative denies receiving the package. It is the burden of an agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Here, the record does not demonstrate that the Complainant's Representative unequivocally received the Notice on or about December 8, 2014.
We REVERSE the Agency's final decision and REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
Within fifteen days of the date that this decision becomes final, the Agency is ORDERED to issue Complainant another notice of right to file a formal complaint, pursuant to 29 C.F.R. � 1614.105. If Complainant files a complaint, then the Agency shall process the formal complaint pursuant to 29 C.F.R. � 1614.106 et seq.
A copy of the Agency notice providing Complainant with a copy of the notice of the right to file a formal complaint shall be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0416)
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), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M
Carlton M. Hadden, Director
Office of Federal Operations
November 23, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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