closed0120140207
03-14-2014
Complainant, v. Sally Jewell, Secretary, Department of the Interior (National Park Service), Agency.
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior
(National Park Service),
Agency.
Appeal No. 0120140207
Agency No. NPS-13-0285
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 13, 2013, 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.
BACKGROUND
During the period at issue, Complainant worked as a Park Ranger at the Agency's Lincoln Home National Historic Site facility in Springfield, Illinois. In its September 13, 2013, final decision, the Agency dismissed Complainant's complaint on the grounds that his formal complaint was untimely filed. The Agency found that Complainant received the Notice of Right to File a Formal Complaint on June 17, 2013; however, Complainant did not file his formal complaint until July 16, 2013, outside of the applicable time period.
The instant appeal followed.
On appeal, Complainant asserts that he initially mailed his formal complaint on June 28, 2013, within the applicable time period. However, he asserts that he sent it to the wrong regional office. Specifically, he asserts that he sent it to the Regional EEO Office rather than the Agency's Office of Civil Rights located in Washington, D.C.
Complainant asserts that "I questioned [a named complaint manager] on when the [formal complaint] was received [by the named EEO Counselor] but I did not get an answer. [The Complaint Manager] informed me [that the named EEO Counselor] was on annual leave during that time period and I was notified upon her return on July 9...that she received the [formal complaint] and returned it to me overnight. On July 10, 2013, I placed the Fedex envelope from [the EEO Counselor] into a National Park Service envelope and mailed it to the Agency [the] same day. I did not open the envelope from [the EEO counselor] for fear of possible perception of tampering with evidence." Complainant further asserts that he is contacting people who have the capabilities to search for the original envelope which contained the formal complaint in order to have the postmark.
In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint.1
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after the date of receipt of the notice of the right to file a formal complaint.
29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with � 1614.604(c).
The record contains a printout tracking receipt from Fedex reflecting that the Notice of Right to File was delivered to "Chatham , IL" on June 17, 2013. Complainant, on appeal, does not contest that he received the Notice on June 17, 2013. We further acknowledge that the Notice informed Complainant that the formal complaint should be filed within 15 days of receipt of the Notice and that the Notice informed Complainant not to file his formal complaint with the EEO Counselor but to file it with the Agency's Office of Civil Rights in Washington, D.C.
Complainant asserts that he initially mailed the formal complaint to the Midwest Regional EEO Office instead of the Agency's Office of Civil Rights in Washington, D.C. However, Complainant asserts that when he mailed it to the Agency's Regional EEO Office, it was within the designated timeframe. The record is devoid of a response from the Agency regarding this assertion. For example, the record does not contain an affidavit from the EEO Counselor as to whether she received a formal complaint from Complainant postmarked within the designated time period. See DelGallego v. U. S. Postal Serv., EEOC Appeal No. 01972971 (Oct. 30, 1997) (finding complainant's formal complaint timely when filed with EEO Counselor rather than designated EEO office reasoning complainant attempted to preserve her rights by timely filing with EEO Counselor). 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." See 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). In addition, 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 decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). Based on the foregoing and the circumstances of this case, we find that the Agency has not met its burden that Complainant's complaint was untimely filed.
Accordingly, for the reasons stated herein we REVERSE the Agency's final decision dismissing Complainant's 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
March 14, 2014
Date
1 We note that the Agency submitted a brief in response to Complainant's appeal; however, the Agency's brief is missing page number 3.
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0120140207
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140207