01A31563_r
08-07-2003
Max A. Martinez, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Max A. Martinez v. Department of Transportation
01A31563
August 7, 2003
.
Max A. Martinez,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A31563
Agency No. 5035005
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of national
origin and reprisal for prior EEO activity when:
Complainant was subjected to a hostile work environment.
In a revised final decision dated December 18, 2002, the agency dismissed
complainant's complaint, dated September 27, 2002, which was received
at the agency's Fort Worth Regional Office in Dallas, Texas on October
25, 2002. The agency found that complainant had received the notice of
right to file a complaint on September 20, 2002. However, the postmark
on the envelope containing the complaint indicated complainant mailed
the complaint on October 22, 2002, which is beyond the 15-day limitation
for filing of the complaint.
On appeal, complainant explains that he initially mailed his complaint to
the address for the agency's Fort Worth Regional Office in Fort Worth,
Texas, as listed on the EEO poster where he works. Complainant states
that he received confirmation that the complaint was received by the
agency on September 30, 2002. Complainant submits for the record, a
photograph of the 1999 EEO poster and a copy of the text that accompanies
the poster. Complainant further states that rather than forward the
complaint to the agency's Dallas office directly, the agency returned
the complaint to him along with the correct forwarding address to which
complainant should have mailed his complaint. Complainant explains that
he thereafter re-mailed his complaint to the Dallas address, with a note
of explanation, realizing the 15-day deadline had passed.
While the Commission has found appeals untimely when sent to the wrong
address after complainant received explicit instructions on how and
where to file an appeal, the case herein involves a more complicated
situation. See Pacheco v. United States Postal Service, EEOC Request
No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong
address despite receipt of proper instructions). Specifically, we note
the EEO poster on display at the facility where complainant works does
indeed reflect a different address for the submission of complaints than
that to which complainant was directed by the notice of final interview,
which issue on appeal, the agency fails to address. However, nothing
in the record confirms complainant's position that he timely mailed
his complaint to the incorrect address or that the agency returned the
misaddressed complaint to him rather than forwarding it the Fort Worth
Regional Office, Dallas, Texas. Under these circumstances, we find the
record inadequate to determine whether the agency properly dismissed
the complaint as untimely.
Accordingly, we hereby VACATE the agency's final decision and REMAND the
matter to the agency in accordance with this decision and the order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall:
Place evidence in the record addressing complainant's contentions on
appeal regarding the information contained in the posters on display at
complainant's duty station, and the agency's procedure for forwarding or
returning complaints received at the former address for the Fort Worth
Regional office.
Contact the complainant for evidence regarding complainant's contentions
on appeal that he timely mailed his complaint to the address listed on
the poster on display at his place of employment and its subsequent return
to him. Such evidence, if any, shall be similarly placed in the record.
Issue a new decision either accepting complainant's claims for
investigation or dismissing complainant's complaint.
A copy of the new decision 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
August 7, 2003
__________________
Date