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