Rogelio Perez, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 28, 2000
01a03198 (E.E.O.C. Aug. 28, 2000)

01a03198

08-28-2000

Rogelio Perez, Complainant, William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rogelio Perez v. United States Postal Service

01A03198

August 28, 2000

Rogelio Perez, )

Complainant, )

)

) Appeal No. 01A03198

) Agency No. 4C-780-0099-00

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

INTRODUCTION

Complainant filed an appeal with this Commission from a final agency

decision concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

For the following reasons, the Commission REVERSES and REMANDS the final

agency decision.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed

complainant's formal EEO complaint for failure to file within fifteen

days of receiving the Notice of Right to File.

BACKGROUND

Complainant, an applicant for employment, filed a formal complaint on

February 5, 2000 in which he alleged discrimination based on physical

disability (10% disabled veteran due to an ACL injury in his right knee)

when he was denied employment with the agency. In its final decision,

the agency dismissed the complaint upon concluding that complainant

failed to file his complaint within 15 days of receiving the Notice of

the Right to File. It is from that decision that complainant appeals.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written

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 � 1614.106 unless the agency extends the time limits in accordance

with � 1614.604(c). Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)).

In this case, the agency contends that complainant was informed of his

right to file a formal complaint on January 19, 2000, and therefore,

his February 5, 2000 complaint is untimely. The evidentiary record

contains two different notices of the right to file; one dated January

19, 2000, the other dated February 1, 2000. Other than the dates,

both notices are exactly the same. For that reason, it is difficult to

ascertain which document is relevant for our purposes and because the

agency always bears the burden of obtaining sufficient information to

support a reasoned determination as to timeliness,<2> we will construe

the evidence in the light most favorable to complainant. Consequently,

we find that February 1, 2000 is the date that he was notified of his

right to file a formal complaint. Therefore, his complaint, filed four

days later, is deemed timely.

CONCLUSION

Based on the foregoing, the Commission holds that the agency's decision

to dismiss complainant's formal EEO complaint for failure to comply

with the 15-day time limit contained in � 1614.106 was erroneous and is,

therefore, REVERSED. As such, the complaint is REMANDED to the agency for

further processing pursuant to this decision and applicable regulations.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

August 28, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2See 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)).