01981541
03-30-1999
Susan M. Kubiak, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Susan M. Kubiak v. United States Postal Service
01981541
March 30, 1999
Susan M. Kubiak, )
Appellant, )
)
v. ) Appeal No. 01981541
) Agency No. 1-J-489-0008-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 13, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated December 1, 1997, pertaining to
her complaint of unlawful employment discrimination in violation of �501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The agency characterized appellant's complaint as alleging that she
was subjected to discrimination on the basis of physical disability
(Thrombotic Condition) when on September 14, 1997, she was denied the
opportunity to work on Tour 2.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 U.S.C. �1614.107(b), for failure to file a formal complaint in a
timely manner. Specifically, the agency concluded that appellant signed
for receipt of the Notice of Right to File Individual Complaint form
(NORF) on October 11, 1997, but did not file her formal complaint until
October 27, 1997, one day beyond the limitation period.
On appeal, appellant contends that she placed her formal complaint in
the mail on October 24, 1997, and was, therefore, timely. Additionally,
appellant asserts that the agency erred in its characterization of her
complaint by failing to include allegations that she was subjected to
harassment by her supervisors.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.106, which, in turn,
requires the filing of a written complaint with an appropriate agency
official within fifteen (15) calendar days after the date of receipt of
the NORF.
It is well-settled that where, as here, there is an issue of timeliness,
the agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness. Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992). Based on a
thorough review of the record, the Commission finds that the agency's
decision to dismiss the complaint as untimely is not supported by
sufficient evidence. The record does not contain any copy of the Notice
of Final Interview and/or NORF and the return receipt for certified
mail signed and dated by appellant fails to disclose what document
appellant received. Based on the foregoing, we find that the agency has
not satisfied its burden of showing that appellant filed her complaint
in an untimely manner.
The Commission notes that the agency failed to address appellant's
allegation concerning the alleged harassment to which she was subjected
by her supervisors, and the Commission deems the agency's action to be
tantamount to a dismissal of that matter. The EEO Counselor identified
the issue in the Counselor's report, and appellant referenced the matter
in her formal complaint. However, EEOC Regulation 29 U.S.C. �1614.106(c)
provides that a complaint must contain a statement which is sufficiently
precise to describe generally the action(s) or practice(s) that form the
basis of the complaint. Although in this case the record discloses that
appellant raised the issue of being harassed by her supervisors to the
EEO Counselor, we find that appellant's vague allegation that she was
subjected to "harassment," without more, is insufficient to meet the
requirements of 29 U.S.C. �1614.106(c). Consequently, we find that it
was properly excluded by the agency.
Accordingly, the agency's decision to dismiss appellant's harassment
allegation is AFFIRMED for the reasons set forth herein. The agency's
decision to dismiss the remaining allegation for untimeliness is
hereby REVERSED. That allegation is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations