Michael D. Billberry, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity CommissionJan 30, 2009
0120073445 (E.E.O.C. Jan. 30, 2009)

0120073445

01-30-2009

Michael D. Billberry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.


Michael D. Billberry,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Pacific Area),

Agency.

Appeal No. 0120073445

Agency No. 4F-900-0261-06

DECISION

Complainant filed an appeal with this Commission regarding his 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

The record reflects that complainant contacted an EEO Counselor on

August 4, 2006 and September 22, 2006, alleging that he was subjected to

discrimination on the bases of sex (Male), color (Black) and in reprisal

for prior protected EEO activity under Title VII when: (1) on July 31,

2006, complainant was not converted from a Part Time Flexible (PTF)

Carrier to a Regular Carrier; and (2) on September 22, 2006, complainant

received a letter of removal effective November 17, 2006.

As an initial matter, we note that complainant filed the instant appeal on

August 1, 2007, before the agency had issued its final agency decision.

Although complainant's appeal was therefore premature at the time of

filing, the agency issued a final decision on December 10, 2007, while

complainant's appeal was pending before the Commission. As a result,

we find that the appeal is currently ripe for review.

In its final agency decision, dated December 10, 2007, the agency

dismissed complainant's complaint for failure to comply with the

applicable time limits. The agency stated that complainant received a

Notice of Right to File Individual Complaint of Discrimination (PS Form

2579-A) on November 2, 2006, indicating that complainant had fifteen

(15) days from receipt of the notice to file a formal complaint.

On appeal, complainant contends that he never received a copy of the

notice of his right to file in November 2006 and that he was informed

by agency officials that he could not file a formal complaint because

the time period to file had expired. Complainant asserts that he first

received a Notice of Right to File in November 2007, when he received the

agency's brief in the instant matter. In addition, complainant states

that on November 10, 2007, a few days after he received the agency's

brief and the Notice of Right to File, he filed a formal complaint.

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) provides, in

relevant part, that an agency shall dismiss a complaint that fails

to comply with the applicable time limits in 29 C.F.R. � 1614.106.

EEOC Regulation 29 C.F.R. � 1614.106(b) states that a complaint must be

filed by an aggrieved party within fifteen (15) days of receipt of the

notice of right to file.

Upon review, we find that there is insufficient evidence in the

record to establish that complainant received the Notice of Right to

File in November 2006, as determined by the agency. Specifically,

the record contains a United States Postal Service "Track/Confirm"

print out, which indicates a delivery on November 2, 2006, in Whittier,

California, at zip code 90604, without any further details of the address.

This generalized reference to a city, state, and zip code is inadequate

evidence to establish that complainant actually received the notice on

the date indicated. Where, as here, there is an issue of timeliness,

"an agency 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)).

Consequently, we find that the record does not support the agency's

assertion that complainant received the Notice of Right to File in

November 2006. We therefore find that the agency improperly dismissed the

complaint for failing to file a formal complaint in a timely manner and

that complainant timely filed a formal complaint on November 10, 2007.

Accordingly, the agency's dismissal of complainant's complaint is

REVERSED, and the complaint is REMANDED to the agency for further

processing in accordance with the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claims 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 (K1208)

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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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 30, 2009

Date

2

0120073445

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120073445