0120082931
09-16-2008
Itria Pe�a, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Itria Pe�a,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082931
Agency No. 4A-100-0098-08
DECISION
Complainant timely appeals from the June 13, 2008 final decision of
the United States Postal Service (the "agency"), which dismissed her
formal 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. For the following reasons, the Commission
reverses the agency's final decision.
The record reveals that complainant received a notice of her right to file
a complaint of discrimination on May 20, 2008. A shipment label and
receipt show that complainant mailed her formal complaint to the agency's
address, a post office box, using the United Parcel Service (UPS) on June
2, 2008. However, the UPS shipment label indicates that on June 5, 2008,
UPS did not deliver the parcel because the delivery address was a post
office box, and UPS returned the parcel to complainant. Subsequently,
complainant mailed her formal complaint to the agency using the United
States Postal Service, and the parcel was postmarked June 6, 2008.
ON June 13, 2008, the agency issued the instant final decision. Therein,
the agency dismissed the formal complaint pursuant to 29 C.F.R. �
1614.107(a)(2), concluding that complainant failed to file a formal
complaint within 15 days after receiving notice of the right to file a
complaint, as required by 29 C.F.R. � 1614.106(b).
On appeal, complainant contends that she timely filed her formal complaint
in that the UPS parcel was postmarked within 15 days after receipt of
the notice of the right to file a complaint. In addition, complainant
contends the 15 day time limit is subject to the waiver, estoppel,
and equitable tolling provisions under 29 C.F.R. � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.106(b) provides that a complaint must
be filed within 15 days of receipt of the notice of the right to file a
discrimination complaint. "A document shall be 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."
29 C.F.R. � 1614.604(b).
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. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of
Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Complainant received the notice of right to file a formal complaint on
May 20, 2008 and therefore had until June 4, 2008 to file her formal
complaint. The UPS shipment label and receipt show that complainant
mailed her formal complaint to the agency on June 2, 2008, two days
before the 15-day time limit.
Although the UPS parcel did not have a postmark from the United States
Postal Service showing the place and date of posting, the tandem
of the UPS shipment label, which lists the tracking number, and the
corresponding UPS shipment receipt matching the tracking number, which
lists the transaction date and proper mailing address of the agency,
provides the same type of information as a postmark from the United
States Postal Service.
The agency argues that a document is considered to be "postmarked" only
if it bears the official postmark of the United States Postal Service
rather than a "franked" postmark from a private postage meter or company.
For support, the agency cites Bunch v. Health and Human Services, EEOC
Request No. 05880687 (September 12, 1988), Stevenson v. Dept. of the Air
Force, EEOC Appeal No. 01A50453 (March 23, 2005), and Smith v. United
States Postal Service, EEOC Appeal No. 01A35368 (January 9, 2004).
These cases are not on point.
In Bunch and Smith, the parcels in question each had two stamps with
conflicting dates. One stamp was either a metered stamp from a business
franking machine or a private postage meter strip, and the other stamp
was a postmark by the United States Postal Service. In Bunch and Smith,
the Commission held that for purposes of determining whether a document
was filed in a timely manner, the date of a postmark by the United States
Postal Service superseded the date of a stamp from a business franking
machine or a private postage meter strip when the dates on the parcel
conflicted. In this case, complainant mailed a parcel that contained
only one shipping label from UPS; the parcel did not have an additional
postmark from the United States Postal Service with a conflicting date.
In Stevenson, complainant mailed an envelope that had only a private
postage meter. The Commission held that the envelope was not officially
postmarked. The rationale for allowing an official postmark from the
United States Postal Service to serve as evidence of timeliness rather
than a private meter postmark is because a private user can change
the date on a private postage meter; therefore, such a date lacks the
inherent reliability of the date on an official U.S. postmark.
In this case, however, neither complainant nor her attorney affixed a date
to the UPS parcel using a private postage meter. Rather, complainant
mailed her complaint using UPS, an independent delivery service, in
which the shipping date could be ascertained by the shipment label and
receipt generated by UPS. Complainant's UPS shipment label and receipt
satisfy the concerns about the reliability of the shipping date.
Based on the record before us, the Commission finds that complainant's
formal complaint was postmarked on June 2, 2008. Therefore, complainant
met the 15 day filing requirement, pursuant to 29 C.F.R. � 1614.106(b).
The Commission finds that the agency erred in dismissing complainant's
claim of discrimination on the basis of sex, and thereby reverses the
agency's final decision and remands the claim for further investigation.
The agency is required to comply with the order below.
ORDER (E0408)
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 (K0408)
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 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 (M0408)
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), 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 19848,
Washington, D.C. 20036. 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 (R0408)
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 (Z0408)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 16, 2008______________
Date
2
0120082931
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036