0120073445
01-30-2009
Michael D. Billberry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Michael D. Billberry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120073445
Agency No. 4F-900-0261-06
DECISION
Complainant filed an appeal with this Commission regarding his 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. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
The record reflects that complainant contacted an EEO Counselor on
August 4, 2006 and September 22, 2006, alleging that he was subjected to
discrimination on the bases of sex (Male), color (Black) and in reprisal
for prior protected EEO activity under Title VII when: (1) on July 31,
2006, complainant was not converted from a Part Time Flexible (PTF)
Carrier to a Regular Carrier; and (2) on September 22, 2006, complainant
received a letter of removal effective November 17, 2006.
As an initial matter, we note that complainant filed the instant appeal on
August 1, 2007, before the agency had issued its final agency decision.
Although complainant's appeal was therefore premature at the time of
filing, the agency issued a final decision on December 10, 2007, while
complainant's appeal was pending before the Commission. As a result,
we find that the appeal is currently ripe for review.
In its final agency decision, dated December 10, 2007, the agency
dismissed complainant's complaint for failure to comply with the
applicable time limits. The agency stated that complainant received a
Notice of Right to File Individual Complaint of Discrimination (PS Form
2579-A) on November 2, 2006, indicating that complainant had fifteen
(15) days from receipt of the notice to file a formal complaint.
On appeal, complainant contends that he never received a copy of the
notice of his right to file in November 2006 and that he was informed
by agency officials that he could not file a formal complaint because
the time period to file had expired. Complainant asserts that he first
received a Notice of Right to File in November 2007, when he received the
agency's brief in the instant matter. In addition, complainant states
that on November 10, 2007, a few days after he received the agency's
brief and the Notice of Right to File, he filed a formal complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) provides, in
relevant part, that an agency shall dismiss a complaint that fails
to comply with the applicable time limits in 29 C.F.R. � 1614.106.
EEOC Regulation 29 C.F.R. � 1614.106(b) states that a complaint must be
filed by an aggrieved party within fifteen (15) days of receipt of the
notice of right to file.
Upon review, we find that there is insufficient evidence in the
record to establish that complainant received the Notice of Right to
File in November 2006, as determined by the agency. Specifically,
the record contains a United States Postal Service "Track/Confirm"
print out, which indicates a delivery on November 2, 2006, in Whittier,
California, at zip code 90604, without any further details of the address.
This generalized reference to a city, state, and zip code is inadequate
evidence to establish that complainant actually received the notice on
the date indicated. Where, as here, there is an issue of timeliness,
"an agency 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)).
Consequently, we find that the record does not support the agency's
assertion that complainant received the Notice of Right to File in
November 2006. We therefore find that the agency improperly dismissed the
complaint for failing to file a formal complaint in a timely manner and
that complainant timely filed a formal complaint on November 10, 2007.
Accordingly, the agency's dismissal of complainant's complaint is
REVERSED, and the complaint is REMANDED to the agency for further
processing in accordance with the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. 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 (K1208)
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 (M1208)
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 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 (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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 30, 2009
Date
2
0120073445
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120073445