0120142192
10-21-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142192
Agency No. 1K-206-0027-14
DECISION
Complainant filed a timely appeal with the Commission from the Agency's final decision dated April 22, 2014, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Expediter at the Agency's Curseen Morris Processing and Distribution Center in Washington, D.C.
On January 21, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On March 7, 2014 Complainant received a Notice of Right to File an Individual Complaint of Discrimination (hereinafter referred to as "Notice"). The Notice informed Complainant that she had fifteen days from the date of receipt of the Notice in which to timely file a formal complaint.
On April 10, 2014, the Agency received Complainant's formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, disability, and age.
On April 22, 2014, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint on the grounds that it was not timely filed, pursuant to 29 C.F.R. � 1614.106(b). The Agency determined that Complainant received the Notice on March 7, 2014, and that she had until March 24, 2014 to timely file her complaint and that Complainant did not file the formal complaint until April 10, 2014.
On appeal Complainant does not dispute receiving and/or signing for the Notice on March 7, 2014, as determined by the Agency. Complainant states that she mailed the formal complaint on March 24, 2014. Complainant attached a copy of a Signature Confirmation tracking receipt (2301 0640 0001 9915 8706) showing a post marked date of March 24, 2014. The receipt indicates, however, that Complainant mailed the documents to the Commission's Washington D.C. office. Complainant stated that she mailed the documents to the address listed "in [her] mailings with the 7923 form." Complainant states that she was not aware that the formal complaint had to be mailed to the Agency's complaint-handling office in Florida. Complainant states that subsequently, she faxed a formal complaint to the Florida office. Complainant does not state why or when she came to fax her complaint to the Florida office. Complainant also
The Agency did not receive a copy of Complainant's appeal. However, in response to the Commission's request for information, the Agency sent documentation that it mailed Complainant the Notice on March 5, 2014. The Notice stated the time frame deadline as well as the Florida address where Complainant should mail her complaint to. The Notice was sent to Complainant's address of record with Signature Confirmation tracking (2313 0740 0000 3152 7923). The record indicates that the package was delivered and signed for on March 7, 2014. However, the signature is illegible.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a 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 29 C.F.R. � 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling.
The Agency has provided documentation that the Notice was mailed to Complainant's address of record and signed for on March 7, 2014. There is indication that Complainant received the Notice and was aware of the fifteen day time frame. It appears that Complainant made an effort, albeit misguided, to mail the complaint documents by March 24, 2014, the fifteenth day as indicated in the Agency's Notice to Complainant. Complainant mailed her complaint to the wrong office. Shortly thereafter, Complainant seemed to have realized her error and faxed a copy of her complaint to the Agency's complaint handling office in Florida. Given these particular circumstances, we consider in particular Complainant's good faith effort to timely file a formal complaint, and the short amount of time which elapsed between the expiration of the fifteen-day limitation period and the Agency receipt of the formal complaint. We therefore determine that there is sufficient justification for the delay in the filing of the formal complaint.
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 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 (K0610)
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 (M0610)
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 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 (R0610)
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 (Z0610)
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
October 21, 2014
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
__________________
Date
______________________________
Compliance and Control Division
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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