0120081908
05-23-2008
Michael P. Clarken, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Michael P. Clarken,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120081908
Agency No. 076300203
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 31, 2008, dismissing 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., and
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 bases of disability
(hearing impairment) and reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:
1. Complainant was not selected for the position of Telephone Interviewer,
GG-0303-03, under Vacancy Announcement BC-CS-TTC-07-001.
The agency dismissed the claim for untimely filing of the Formal
Complaint, pursuant to 29 C.F.R. � 1614.107(a)(2) and 106(b). The
agency contends that the Notice of Right to file (Notice) was mailed
to complainant's address of record on August 21, 2007. The Notice was
sent both certified - return receipt requested, and regular mail. It is
undisputed that the certified mail went unclaimed and was returned to
the agency as undeliverable on August 28, 2007. It is further undisputed
that complainant contacted the agency on September 11, 2007 by telephone
explaining that he had been out of town for "most of the month of August"
and that upon his return he found a notice from the Postal Service stating
that a certified letter had been returned to the agency as undeliverable.
According to the FAD, complainant was told that he had also been sent
a Notice by regular mail, and that he had 15 days to file his complaint
from the date of receipt of the Notice.
Complainant's response, according to the FAD, was that the agency had no
way of proving when he received the Notice sent by regular mail, and he
requested that the notice be sent again. The agency complied by issuing
a second Notice, via certified mail, which was received on September
19, 2007. Complainant filed the instant complaint on October 3, 2007.
In its FAD, the agency essentially found that because the first Notice
was mailed on August 21, 2007, and was not returned as undeliverable, it
should be assumed that complainant received it. Furthermore, allowing five
days for delivery, complainant's Formal Complaint should have been post
marked no later than September 10, 2007. Because the Formal Complaint
was not filed until October 3, 2007, the FAD noted, it was untimely filed.
The FAD further found that even assuming complainant did not receive the
Notice sent by regular mail, complainant was put on notice on September
11, 2007 when he telephoned the agency, that the Notice had been mailed
to him and that one copy had been returned as undeliverable. Therefore,
the FAD found, complainant could have filed his Formal Complaint by
September 26, 2007, and so his October 3, 2007 filing was again untimely.
Finally, the FAD found that apparent inconsistencies in complainant's
statements, as well as his contention that the agency had no way of
proving when he received the Notice "suggest[] that he himself is
acknowledging his formal complaint was not timely filed." On appeal,
complainant denies any inconsistency in his statements, and denies
receiving the Notice until September 19.
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).
We note initially that the regulations specifically state that
notification of a complainant's right to file a Formal Complaint has to
be in writing. 29 C.F.R. � 1614.105(d). We are therefore unpersuaded by
the agency's argument that complainant was put on notice by the September
11 telephone conversation with agency officials. Nor are we persuaded
by any alleged inconsistencies in complainant's statements. Because the
agency is unable to establish that complainant received the Notice prior
to September 19, 2007, we find the complainant's October 2, 3007 filing
to have been timely. Accordingly, the agency's final decision dismissing
complainant's complaint is REVERSED and is remanded to the agency for
further processing in accordance with the Order set forth below.
ORDER (E0408)
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 (K0408)
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 (M0408)
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 (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 (Z0408)
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
May 23, 2008
__________________
Date
2
0120081908
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
5
0120081908