Keith E. LaRue, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120070084 (E.E.O.C. Feb. 6, 2007)

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