EEOC Appeal No. 0120180334
02-15-2018
Mario K. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Mario K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120180334
Agency No. 1G701003217
DECISION
Complainant timely appealed to the Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 28, 2017, dismissal of his complaint alleging 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
At the time of events giving rise to this complaint, Complainant was working as a Mail Handler (PS-4) at the Agency's Main Office in New Orleans, Louisiana.
On September 1, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, color, sex, religion, disability, age and/or reprisal for engaging in prior protected EEO activity when:
1. On May 13, 2017, he reported to management that a coworker spoke to him in a demeaning manner, and management officials failed to take proper action; and
2. On or about July 25, 2017, he was notified that his bid position would be abolished, effective September 2, 2017.
The Agency dismissed Complainant's complaint for untimely filing in accordance with 29 C.F.R. �� 1614.107(a)(2) and 1614.106(b).
The instant appeal followed. In his appeal, Complainant asserts that the Agency is lying.
ANALYSIS AND FINDINGS
Under 29 C.F.R. �1614.106(b), a complainant must file a written complaint with the agency that allegedly discriminated against him or her within 15 calendar days after the date of receipt of the Notice of Right to File an Individual Complaint. An agency shall dismiss a complaint which is not filed within the 15-day time period. See 29 C.F.R. �1614.107(a)(2).
In this case, the Agency contends that Complainant received the notice of right to file a formal complaint on August 15, 2017, triggering the 15-day filing period with the complaint due on August 30, 2017. However, Complainant did not file his formal complaint until September 1, 2017, two days after the window to file closed.
The record contains tracking documentation indicating the notice of right to file was delivered to Complainant's address of record and signed for by "J Watson" on August 15, 2017. Additionally, Complainant signed and dated the Notice of Right to File, as well as his formal complaint, on August 14, 2017. Examination of the notice indicates that it clearly notified Complainant of the 15-day deadline.
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. See 29 C.F.R. �1614.604(b).
Here, the envelope containing Complainant's formal complaint was received by mail, but does not have a legible postmark. It is stamped by the Agency as received on September 5, 2017. By operation of 29 C.F.R. � 1614.604(b) due to the lack of a legible postmark, the complaint should be deemed timely if received within five days of the expiration of the applicable filing period, or September 4, 2017 (five days after the August 30, 2017 due date). However, because September 4 was a federal holiday, the receipt date moves to Tuesday, September 5, 2017,2 the day the complaint is stamped as received. See 29 C.F.R. � 1614.604(d). As such, we conclude the complaint was timely filed and should not have been dismissed.
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED and the matter is REMANDED to the Agency for further processing.
ORDER (E1016)
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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
February 15, 2018
__________________
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.
2 Regardless of whether one uses the August 14 or August 15, 2017 receipt date, because of the long Labor Day weekend, the complaint would be timely.
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