0120151216
02-02-2016
Kiara R.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kiara R.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120151216
Agency No. ATL-140703-SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 5, 2015 dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as a Claims Representative at the Agency's District Office in Pensacola, Florida.
On July 18, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On August 5, 2014, the Agency mailed Complainant a Notice of Final Interview and Right to File a Discrimination Complaint (Notice). The Agency mailed the Notice with a United Parcel Service (UPS) Tracking Number 1Z61V9443593535336. The Agency determined that Complainant received the Notice on August 7, 2014.
Complainant filed the instant formal complaint, dated August 20, 2014, alleging that the Agency subjected her to a hostile work environment and discrimination on the bases of race (African American), sex (female), color ("light-skinned"), marital status (married) and reprisal for prior protected EEO activity when she was subjected to ongoing harassment, including: from May through August 2014, she had unfair assignments and workload; on July 8, 2014, she received a memorandum proposing a one-day suspension; and on July 30, 2014, one of her assignments was reassigned.
On February 5, 2015, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint on the grounds that it was not timely filed. The Agency determined that the Notice of right to file was delivered and signed for at Complainant's address of record on August 7, 2014. The Agency determined that Complainant had fifteen days from August 7, 2014, in which to timely file a formal complaint. The Agency determined, however, that Complainant did not file the formal complaint until October 7, 2014, 61 days after receiving the Notice.
The instant appeal followed. On appeal, Complainant contends that she timely mailed the complaint via United States Postal Service First Class Mail on August 20, 2014. Complainant included a copy of her receipt which indicated that a package (weighing 8.9 ounces) was mailed to a Baltimore, Maryland location, with an expected delivery date of Saturday, August 23, 2014. The receipt indicated that the package cost $2.66 to mail. Complainant contends that it is "incredibly hard to believe that the Agency did not receive it until October 7, 2014, when it was mailed in August. [Complainant states that she] would expect that the Agency would honor the postmark date in considering the timeliness of [her] filing."
In its response, the Agency reiterates statements made in its final decision. The Agency contends that it received Complainant's formal complaint on October 7, 2014, and that on October 16, 2014, it sent Complainant an acknowledgement stating that the formal complaint would be considered formally filed on October 7, 2014.
Moreover, the Agency contends that the receipt Complainant included in her appeal does not match the information on the package the Agency received on October 7, 2014. The Agency included a copy of an envelope, which it contends, displays postal markings indicating that it was mailed via the United States Postal Service with a Return Receipt requested. The Agency contends that the envelope had markings indicating that it weighed 4.4 ounces and cost $7.80 to mail. It also noted that Complainant's receipt did not have a fee for the Return Receipt request, but that the envelope had a stamp on it indicating that a Return Receipt was requested. The Agency concluded that Complainant received the Notice on August 7, 2014, but chose not to file her complaint until October 7, 2014, 61 days after receiving the Notice.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to comply with the 15-day time limit contained in 29 C.F.R. � 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling.
The Agency determined that Complainant received the Notice August 7, 2014, but that Complainant did not file her formal complaint until October 7, 2014. The Agency also had argued that the package had been signed for at Complainant's address of record. However, the record does not contain any documentation that Complainant, or any other unidentified individual, signed for any packages on or about August 7, 2014 from the Agency. The Agency merely asserted that the record reflects, without further elaboration, that Complainant received the Notice on August 7, 2014. Furthermore, while the record contains a delivery receipt from the UPS that indicates a package was delivered on August 7, 2014, at a location in Pensacola, Florida, the receipt does not indicate an actual delivery address. Moreover, there is no signature receipt included. The Agency also argued that the envelope it received, containing Complainant's formal complaint, had postal markings contradicting Complainant's appeal brief. However, the documentation sent by the Agency is very difficult to read and large sections are blacked out. It is possible to make out a partial Baltimore, Maryland address, a Return Receipt Requested stamp, as well as a received stamp date of October 7, 2014, but any other postal markings, as alleged by the Agency, are not visible. Clearly, it is the burden of an agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). In this case, the Agency has failed to meet this burden.
Finally, the Commission has no jurisdiction over claims of marital status discrimination. The Commission only has authority over federal sector complaints of discrimination on the bases of race, color, religion, sex, national origin, age, disability or reprisal. See 29 C.F.R. �� 1614.103, 1614.106(a); Lee v. United States Postal Service, EEOC Appeal No. 01965341 (September 4, 1998). To the extent that Complainant has raised the basis of marital status, this basis need not be addressed by the Agency on remand.
CONCLUSION
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Commission to REVERSE the Agency's final decision and 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 (on the basis of race, sex, color, and reprisal) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (M0815)
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 tends 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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M.
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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