01a54947
01-18-2006
Luanna Fuentes-Ruiz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Luanna Fuentes-Ruiz v. United States Postal Service
01A54947
January 18, 2006
.
Luanna Fuentes-Ruiz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A54947
Agency No. 4G-870-0055-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 8, 2005, dismissing her formal EEO complaint,
pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. In her complaint, complainant alleged that she was subjected
to discrimination on the bases of her disability and in retaliation for
prior EEO activity in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. when
in January 2005, she discovered through a routine inquiry into social
security benefits that she had been terminated from her employment with
the agency.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
Upon review of the record, we find that complainant did not specify an
exact date in January 2005 upon which she alleges to have discovered
that she was terminated. In its final decision, the agency states that
assuming the date that the alleged discriminatory event occurred was
January 1, 2005, complainant's March 2, 2005 EEO Counselor contact is
beyond the forty-five (45) day limitation period.
It is well-settled 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." Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
We find, however, that the record contains insufficient information to
determine whether complainant's March 2, 2005, counselor contact was
timely. Specifically, the record does not identify the exact date in
January 2005, upon which complainant alleges to have made the inquiry
into her social security benefits which led to the discovery of her
termination. Further, despite the agency's contention that complainant
was issued a Notice of Personnel Action indicating that complainant
would be separated from employment on November 27, 2004, we find that
the record does not contain a copy of this notice and is also devoid of
any evidence showing that such a notice was ever received by complainant.
Accordingly, the agency's decision to dismiss the complaint for untimely
EEO Counselor contact is vacated, and the complaint is remanded to the
agency for further processing in accordance with this decision and the
order below.
ORDER
The agency is ordered to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall undertake a supplemental investigation (a) to
determine the exact date in January 2005 upon which complainant made
the inquiry into her social security benefits, and (b) to uncover any
evidence to support the agency's contention that complainant was issued,
and received, a notice of separation in November 2004. The agency shall
supplement the record with any relevant documentation obtained as a result
of its investigation, specifically including affidavits from complainant,
complainant's relevant supervisors, and any other relevant EEO and Human
Resources personnel, and a copy of the Notice of Removal.
2. Within thirty (30) calendar days of the date this decision becomes
final, the agency shall issue a notice of processing and/or a new
decision.
A copy of the agency's notice of processing and/or new 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
January 18, 2006
__________________
Date