Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2013

0120113616 (E.E.O.C. Jun. 14, 2013)

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

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.

Appeal No. 0120113616

Agency No. 4K-280-0079-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated June
13, 2011, dismissing her 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. 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 Clerk at the
Agency’s Post Office in Mathews, North Carolina. On May 31, 2011, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination and a hostile work
environment on the bases of race (African-American), sex (female), disability, age, and in
reprisal for prior protected EEO activity when on April 8, 2011, she was yelled at, threatened,
and harassed on the workroom floor and on May 16, 2011, she requested her paycheck be
mailed which has not been sent.

On June 13, 2011, the Agency issued a final decision dismissing the complaint pursuant to 29
C.F.R. § 1614.107(a)(2) on the grounds that it was untimely filed. In dismissing the
complaint, the Agency reasoned that the Postal Service’s “Track and Confirm” information
showed that the Notice of Right to File a Formal Complaint was mailed to Complainant’s
address of record and signed for by “L. McCray” on May 12, 2011. However, the formal
complaint was received by certified mail in an envelope postmarked on May 28, 2011, one day
beyond the 15-day limitation period. As a result, the Agency dismissed the complaint as
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untimely filed. Alternatively, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. The Agency concluded that the totality of the
actions complained of were not sufficiently severe or pervasive to state a claim of hostile work
environment. Accordingly, the Agency found that the complaint should be dismissed for
failure to state a claim as well. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that her complaint was not filed untimely. Complainant
states that it is not her signature showing that receipt of the Notice of Right to File and that she
underwent surgery around that time. In support, Complainant submitted a copy of hospital
documentation showing that she had surgery on May 11, 2011. Accordingly, Complainant
requests that the Commission reverse the Agency’s dismissal.

ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency
shall dismiss a complaint which fails to comply with the applicable time limits contained in 29
C.F.R. § 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so.

The Commission finds that the record in this case does not contain adequate documentation
reflecting when Complainant received the Notice of Right to File. A United States Postal
Service “Track & Confirm” printout indicates a delivery of the notice on May 12, 2011, in
“Charlotte, NC 28212” without any further details of the address. The printout also indicates
that the item was signed for by “L. McCray.” This generalized reference to a city, state, and
zip code is inadequate evidence to establish that Complainant actually received the Notice on
the date indicated. In addition, the person signing for the notice has not been identified and
Complainant has denied that it is her signature. 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) (quoting Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992)).
The Commission finds that the Agency has not met this burden and deems the complaint timely
filed.

Turning to the Agency’s alternative grounds for dismissal, a fair reading of Complainant’s
formal complaint and related counseling materials reveals that Complainant alleged that the
Officer-in-Charge (OIC) harassed her on a daily basis including an incident on April 8, 2011,
where OIC threatened and yelled at her “you want me to send you home?” and “you better
watch your back.” Additionally, Complainant alleges that OIC retaliated against her by
refusing to comply with her restrictions after an on-the-job injury. Finally, Complainant
claims that OIC failed to mail her paycheck as she requested, and she has not received a
paycheck since April 19, 2011. The Commission finds that Complainant's allegations are
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sufficient to state a claim of harassment. Complainant has alleged an injury or harm to a term,
condition, or privilege of employment for which there is a remedy.

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is hereby REMANDED to the Agency for further processing in accordance with
this decision and the ORDER below.

ORDER (E0610)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R.
§ 1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claim 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.

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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 (Nov. 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
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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

June 14, 2013
Date