01991755
10-14-1999
Ronnie Montgomery, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ronnie Montgomery v. United States Postal Service
01991755
October 14, 1999
Ronnie Montgomery, )
Appellant, )
) Appeal No. 01991755
v. )
) Agency No. 4-H-390-0170-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to file a formal complaint within fifteen days of
receiving the notice of the right to file.
BACKGROUND
Appellant sought EEO counseling on March 11, 1998 alleging discrimination
on the bases of race (black), color (brown), sex (male), and physical
disability (unspecified) when he was not reassigned to a similar position
closer to his home and denied promotion.
In its final agency decision, the agency dismissed the complaint under
29 C.F.R. �1614.107(b) upon concluding that appellant failed to file
a formal complaint within fifteen days of receiving the notice of the
right to file. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) provides that a complaint must be
filed within fifteen days of receipt of the notice of the right to file.
Regulation 29 C.F.R. �1614.107(b) gives agencies the authority to dismiss
claims that fail to comply with the aforementioned time limit.
After a detailed examination of the file, the evidence reveals that,
on May 11, 1998, appellant received, from the agency, a letter regarding
the final interview. According to the agency, the letter explained and
was accompanied by the following: (1) PS Form, Representation/Anonymity;
(2) PS Form 2579-A, the Notice of the Right to File Individual Complaint
form; (3) PS Form 2565, EEO Complaint of Discrimination in the Postal
Service; (4) PS Form 2564-C, Withdrawal of Informal EEO Complaint of
Discrimination; and (5) PS Form 2565-C, Agreement to Extend 180-Day
Investigative Process. The agency contends that, because appellant
never returned a completed copy of PS Form 2565, he failed to comply with
the 15 day statutory time requirement and, therefore, his claim could
be dismissed. Appellant argues that the reason he did not return the
formal complaint form is because it was not included in the materials
he received on May 11, 1998.
In filing formal complaints, complainants are not required to use the
official forms provided by agencies. Letters and other such writings, as
long as they exhibit an intent to proceed with the formal EEO complaint
process, are sufficient to satisfy the formal complaint requirement.
According to file documents, on May 22, 1998, appellant submitted
a letter to the agency which clearly suggested that he intended to
continue his complaint beyond the EEO counseling phase. As such,
we hold that the letter constitutes appellant's formal complaint.
Because it was submitted on May 22, 1998, 11 days after receiving the
Notice of the Right to File, within the 15 day time limit, we conclude
that appellant's complaint should not have been dismissed as violative
of the time requirements contained within 29 C.F.R. �1614.106(b)
Accordingly, the decision of the agency was erroneous and is, therefore,
REVERSED and REMANDED for further processing in accordance with this
decision and the proper regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that you
have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 14, 1999
____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations