Sherida L. Cosby, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.

Equal Employment Opportunity CommissionJun 16, 2010
0120101031 (E.E.O.C. Jun. 16, 2010)

0120101031

06-16-2010

Sherida L. Cosby, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.


Sherida L. Cosby,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Capital Metro Area),

Agency.

Appeal No. 0120101031

Agency No. 1K231007709

DECISION

Complainant filed a timely appeal with this Commission from the Agency's

decision dated December 14, 2009, 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

the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's

complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a).

BACKGROUND

During the relevant period, Complainant was employed as a Clerk at a

Virginia postal facility. On August 6, 2009, Complainant initiated

contact with an EEO Counselor alleging that the agency discriminated

against her on the bases of race (African-American), sex (female), age

(over 40), and reprisal for prior protected EEO activity when management:

(1) on August 1, 2009, placed her on emergency suspension citing Failure

to Follow Instructions/Insubordination, (2) on September 12, 2009,

issued her a notice of 7-day suspension, and (3) on August 7, 2009,

charged her with six hours of absence without official leave (AWOL).

In a letter and Notice of Right to File Individual Complaint (NORF),

both dated November 4, 2009, an EEO Counselor informed Complainant of

her right to file a formal EEO complaint within 15 days of receipt of

the letter/NORF and of the possibility of complaint dismissal if she

failed to file timely. The record contains a priority mail signature

confirmation printout indicating that the NORF was delivered at 1:23

p.m., on November 5, 2009, to Complainant's residential city, state and

zip code." Subsequently, in formal EEO complaint dated November 19, 2009,

Complainant reiterated the above claims and asked to be "made whole."

The agency dismissed Complainant's complaint pursuant to 29 C.F.R. �

1614.107(a)(2), as an untimely filed formal complaint. The Agency stated

that Complainant received the NORF on November 5, 2009, and the fifteen

calendar day deadline from that date was November 20, 2009. The agency

found that Complainant's formal complaint was late, stating that it

was filed on November 21, 2009, as evidenced by its envelope postmark.

Further, the Agency dismissed (1) and (2) for failure to state a claim

because they were rescinded through the negotiated grievance process.

The instant appeal from Complainant followed. On appeal, Complainant

stated that she received the NORF on November 7, 2009, and noted that

priority mail takes 2 - 3 days for delivery and the agency is indicating

she received the NORF via priority mail in one day.

ANALYSIS AND FINDINGS

We find that Complainant's complaint was improperly dismissed pursuant

to 29 C.F.R. � 1614.107(a). The regulation set forth at 29 C.F.R. �

1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a

complaint which fails to comply with the applicable time limits contained

in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal

complaint within fifteen (15) days of receiving the notice of the right

to do so. All � 1614 time limits are in terms of calendar days unless

otherwise noted. The burden is upon the agency to support its dismissal.

Here, under the circumstances, we find that the Agency failed to support

its dismissal. There is insufficient evidence of record reflecting

Complainant's receipt of the NORF on November 5, 2009. The record

contains a United States Postal Service "Track & Confirm" print-out,

which indicates a delivery on November 5, 2009 in "Richmond, VA 23225"

without any further details of the address. We determine that there

is no evidence, other than this generalized reference to a city and

zip code, indicating that Complainant actually received the Notice.

Complainant stated that she received the NORF on November 7, a date which

would render her complaint timely. 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). As Complainant filed her

formal complaint on November 21, 2009, and there is inadequate evidence

of her receipt of the Notice, we find Complainant's formal complaint

was timely filed within the 15-day time limit.

Further, to the extent that the agency stated that (1) and (2) fail to

state a claim because they were resolved, we note that the appropriate

analysis is whether the actions are rendered moot by the resolution.

We find that the record does not support a finding that Complainant was

made whole for the Agency's actions contested in her formal complaint

so those matters are not moot but active.

Accordingly, we VACATE the procedural dismissal and REMAND the matter

to the agency for further processing consistent with this decision and

the ORDER below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with 29

C.F.R. � 1614.108 et seq. 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

June 16, 2010

__________________

Date

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0120101031

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120101031