0120064717
02-02-2007
Terence H. Lee, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.
Terence H. Lee,
Complainant,
v.
Michael W. Wynne,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01200647171
Agency No. 6Z1M06010
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 6, 2006, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability (neck injury) when he was
assigned to do office work rather than yard work which complainant claims
violates the accommodation he was given by the agency for a neck injury
which occurred in 1998.
The agency dismissed complainant's complaint as untimely in accordance
with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). Specifically, the
agency contends that complainant failed to file his formal complaint
within 15 days of receiving notice of his right to do so. Upon review,
we find that the agency improperly dismissed complainant's complaint on
the grounds that it was untimely filed.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a formal complaint.
In its final decision, the agency indicates that on March 30, 2006, the
agency sent by certified mail to complainant's last know address, the
Notice required by EEOC Regulation 29 C.F.R. � 105, informing complainant
that he had 15 days in which to file his formal complaint. The agency
further indicates that it made "several attempts" to contact complainant.
Finally, the agency states that on May 17, 2006 the agency's Notice to
complainant was returned twice marked unclaimed. A review of the record
discloses that the Notice sent by the agency to complainant's address
was not accompanied by a certificate of service creating a presumption
that the Notice was received by complainant within five days of mailing.
The agency neither details its "several attempts" to contact complainant
nor submits on appeal, a copy of the Notice marked unclaimed. The record
supports the contention that complainant did not receive the agency's
Notice dated March 30, 2006. The record contains a copy of the return
receipt card reflecting that neither complainant nor anyone else signed
for delivery of the Notice dated March 30, 2006.
In addition, the record reveals in a letter dated May 18, 2006, the agency
indicated that it was resending EEO forms and brochures to complainant
regarding the instant complaint. Among the EEO forms and brochures
mailed to complainant on May 18, 2006, is a notice advising complainant
of the requirement to file his formal complaint within fifteen days.
The record indicates that complainant immediately responded to the
agency's correspondence by filing his formal complaint received by the
agency May 22, 2006.
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).
Based on these circumstances, the Commission finds that complainant
timely filed his formal complaint.
Accordingly, the agency's decision is REVERSED for the reasons set
forth herein. Complainant's complaint is REMANDED in accordance with
this decision and the Order 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
February 2, 2007
__________________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
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0120064717
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064717