0120070084
02-06-2007
Keith E. LaRue, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keith E. LaRue,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070084
Agency No. 4G-720-0093-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated September 22, 2006, dismissing his complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability (severe depression) when
he was removed effective December 4, 2005.
The FAD dismissed the claim on the grounds that complainant failed to
timely seek EEO counseling. An aggrieved person must seek EEO counseling
within 45 days of the date of the alleged discriminatory action, or in
the case of a personnel action, within 45 days of the effective date of
the action. 29 C.F.R. � 1614.105(a)(1). The time limit to seek EEO
counseling shall be extended when an individual shows he did not know
and reasonably should not have known that the discriminatory action or
personnel action occurred. 29 C.F.R. � 1614.105(a)(2). In dismissing
the complaint, the FAD reasoned that complainant learned of his removal
by February 6, 2006, but did not contact an EEO counselor until June 8,
2006, beyond the 45 day time limit.
Complainant contends that he did not learn of his removal until May
24, 2006. According to the counselor's report, he stopped reporting
to work around March 2005, and ran out of paid leave in April 2005.
Then, by letter to the agency dated May 22, 2006, he wrote that he had
been out due to severe depression, and was ready to return. By written
reply the next day, the agency informed complainant he had been removed
effective December 4, 2006, and he contends this is when he first learned
of his removal.
The agency countered that complainant was sent a notice of removal dated
October 31, 2005. It was addressed to complainant's Triston Lane address.
It states complainant will be removed no sooner than 30 calendar days
from his receipt of the notice. While a copy sent by return receipt
to complainant was returned to the agency, a delivery confirmation
indicates it was delivered on November 11, 2005. Complainant states
he never received it. He states that he had moved from Triston Lane,
left a forwarding address, and the delivery may have been made to
Triston Lane. The delivery confirmation only indicates the zip code
and town of delivery, not the address.
Thereafter, by notification of personnel action PS Form 50 processed
on February 1, 2006, the agency removed complainant effective December
4, 2005. It indicates complainant's address was on Shannon Road.
Complainant submits the envelope of a bank mailing to him to his
Shannon Road address in mid-November 2005 has what appears to be a
hand written forwarding to his post office box. It is not clear who
did this. On appeal, the agency argues that procedure dictates that
whenever a Form 50 is generated, a copy is mailed to the employee.
Assuming a five day delivery time, the FAD and agency appeal argument,
respectively, found and argued complainant learned of his removal on
February 6, 2006. Complainant states he never received the Form 50.
He states that if he had, he would have raised the issue then, and not
tried to return to work in May 2006.
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).
The factual issue of when complainant learned of the effective date of his
removal turns on when he received his Form 50. The agency makes argument
regarding this, but submits no evidence of when the mailing occurred.
For example, there is no affidavit in the record regarding the date of
the mailing, or a certificate of mailing. Given this, the agency has
not met its burden of obtaining sufficient information to support is
finding that complainant failed to timely seek EEO counseling.
Accordingly, the FAD is reversed.
ORDER
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 (K0501)
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 (M0701)
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 (R0900)
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 (Z1199)
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
February 6, 2007
__________________
Date
2
0120070084
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120070084