0120160936
04-19-2016
Travis H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Travis H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120160936
Agency No. 4X048005315
DECISION
Complainant timely appealed to this Commission from the Agency's December 23, 2015 dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Care Agent (PS-06) at the Agency's Customer Care Center in Los Angeles, California.
On November 6, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic), sex (male), color (not specified), and reprisal for prior protected EEO activity (EEOC Appeal No. 0120143028) when, on June 21, 2015, he learned that he was not selected as a Lead Customer Care Agent.
Complainant made his interest in the Lead position known to Management in June of 2014, by submitting a PS Form 13 request for a Lead position. On June 21, 2015, Complainant learned that despite his request to be considered for the position, Management hired a new Lead (African-American, female, color not specified). Complainant also alleges that two other employees (both African-American, female, color not specified) were assigned as leads "right from the get go," whereas he had yet to receive a Lead position.
Complainant secured the services of a non-legal representative to assist him with the EEO process, and on or around July 26, 2015 he met with an Agency EEO Counselor. In the appropriate section of the pre-counseling intake form, Complainant included the name, address, phone number and email of his non-legal representative. Both Complainant and the EEO Counselor, who was assigned for the duration of processing, signed the form. On October 16, 2015 the EEO Counselor issued the Notice of Right to File an Individual Complaint, ("Notice"). In his summary of the inquiry, addressed to Complainant, the EEO Counselor stated, "I tried to conduct an inquiry with you and you directed me to your [non-legal representative]. I communicated with him and he gave the same description of incident as you did." The Certificate of service accompanying the Notice also identifies Complainant's non-legal representative as a recipient. However, only Complainant was provided with a delivery tracking number.
Complainant received the Notice on October 20, 2015, but Complainant's non-legal representative alleges he did not receive his copy until October 26, 2015. On November 6, 2015, he emailed and called Complainant, assisting him with filling out the Formal Complaint form. Complainant's completed Formal Complaint form includes a drawing of an arrow to the EEO Counselor's signature and the following note: "this person said he was going to deal with my representative." Complainant filed the formal Complaint that day.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written complaint with the agency that allegedly discriminated against the complainant within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint required by 29 C.F.R. �1614.105. Under 29 C.F.R. �1614.604(b), a complaint is deemed timely if it is received or postmarked before the expiration of the applicable filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. This time limit is subject to waiver, estoppel, and equitable tolling, pursuant to 29 C.F.R. �1614.604(c).
The agency has the burden of proving that the complainant received the notice and that the notice clearly informed the complainant of the 15-day filing time frame. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995); Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) Additionally, 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. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994); Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132751 (Jan. 9, 2014)
The record discloses that Complainant received the notice of right to file a formal complaint on October 20, 2015. Fifteen calendar days places the filing deadline at November 4, 2015. We find the Agency met its burden to ensure Complainant was clearly informed that he must file a formal complaint within fifteen (15) calendar days of its receipt. The Notice was accompanied by clear instructions with contact information for any questions. Moreover, Complainant had constructive knowledge of the process given that he successfully filed a formal complaint for a previous EEO complaint. Yet, Complainant did not file his formal complaint until November 6, 2015, which, at seventeen (17) days after receipt is beyond the limitation period.
On appeal, Complainant's non-legal representative argues that the Agency failed to meet its burden to show a reasoned determination of timeliness, pointing to the Agency's lack of tracking information or proof of delivery associated with his copy of the Notice. Based on his own alleged date of receipt, October 26, 2015, Complainant's non-legal representative understood the deadline to file was November 9, 2015. As a result, Complainant's non-legal representative did not discuss the matter with Complainant until November 6, 2015. Complainant's non-legal representative also appears to argue in favor of an extension because Complainant relied on him to fill out the Formal Complaint form.
With the exception of designated attorney representatives, all limitation periods for timeliness purposes are based on the date of Complainant receipt. See 29 C.F.R. �1614.605(d); Blakemore v. Dep't of the Navy, EEOC Appeal No. 01A42421 (Aug. 5, 2004) Here, Complainant's representative is not an attorney, so he must rely on the date Complainant received the Notice from the Agency to calculate the filing deadline. Complainant had ample opportunity to reach out to his non-legal representative or the Agency to resolve any confusion he may have had about filing the formal complaint. We emphasize that at all times, Complainant is responsible for preceding the complaint whether or not a representative has been designated. See 29 C.F.R. �1614.605(e)
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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), at Chap. 9 � VII.B (Aug. 5, 2015). 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 19, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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