Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Jul 14, 2015

01-2015-1627-0500 (E.E.O.C. Jul. 14, 2015)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120151627

Agency No. 1F957000115

DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated
March 5, 2015 dismissing 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.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C.
§ 621 et seq. Upon review, the Commission finds that Complainant's complaint was
improperly dismissed.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor EAS-
17 at the Agency’s Sacramento Processing and Distribution Center (P&DC) in Sacramento,
California. On February 20, 2015, Complainant filed a formal complaint alleging that the
Agency subjected him to discrimination on the bases of race (African-American), sex (male),
religion (Jehovah's Witness), and age (59) when:

1. on July 4, 2014, he was charged Leave Without Pay (LWOP) instead of Annual
Leave;
2. on October 10, 2014, he was given an Investigative Review;
3. on October 17, 2014, his manager informed him that he was being charged
Absent Without Leave (AWOL) for his absence of the previous day;
4. on December 5, 2014 and February 20 & 21, 2015, his manager yelled at him;
5. on December 21, 2014, a manager yelled at him and pointed a radio in his face;
and
6. on January 11, 2015, his manager told him that he was skipped on the vacation
sign-up roster.

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ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.106(b) states, in pertinent part, that a complaint
must be filed within 15 days after receipt of the notice of the right to file a discrimination
complaint issued by the Equal Employment Opportunity (EEO) Counselor. Additionally, under
“Filing and Computation of Time,” 29 C.F.R. § 1614.604 states that: (a) All time periods in
this part that are stated in terms of days are calendar days unless otherwise stated; (b) A
document shall be deemed timely if it is delivered in person 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; (c) The time
limits in this part are subject to waiver, estoppel and equitable tolling; and (d) The first day
counted shall be the day after the event from which the time period begins to run and the last
day of the period shall be included, unless it falls on a Saturday, Sunday or Federal holiday, in
which case the period shall be extended to include the next business day.

Based on a thorough review of the record, the Commission concludes that the Agency’s
dismissal, due to the untimely filing of the formal complaint, was improper. The evidence
does not contain adequate documentation reflecting when Complainant received the notice of
his right to file a discrimination complaint. We acknowledge a USPS Track and Confirm
Record indicating that a particular Signature Confirmation Form was delivered to
Complainant’s zip code on January 28, 2015. Nothing reflects Complainant’s receipt of the
notice on January 28, 2015, as nothing demonstrates that a notice was delivered to
Complainant’s address of record. Where, as here, there is an issue of timeliness, “an 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)
(quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (Aug. 25, 1992).
Additionally, in Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993),
the Commission stated that “the agency has the burden of providing evidence and/or proof to
support its final decisions.” Gens v. Dep’t of Defense

, EEOC Request No. 05910837 (Jan. 31,
1992). As Complainant filed his complaint on February 20, 2015, and there is no persuasive
evidence as to when Complainant actually received his notice of right to file, we find that
Complainant’s EEO complaint was timely filed.

CONCLUSION
Accordingly, the Agency’s final decision dismissing Complainant’s complaint is REVERSED.
The matter is REMANDED for further processing as set forth in the Order below.

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R.
§ 1614.105 et al. 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
ORDER
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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

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.
(K0610)
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
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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

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.
(R0610)

RIGHT TO REQUEST COUNSEL

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.
(Z0610)
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
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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

Date
July 14, 2015