0120072222
12-31-2008
Valerie A. Carpenter, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Valerie A. Carpenter,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072222
Agency No. 4H-300-0051-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated March 2, 2007, dismissing her 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.
On February 13, 2007, complainant filed a formal EEO complaint alleging
that she was subjected to discrimination on the bases of race, sex,
and in reprisal for prior EEO activity when:
(1) from October 2006 through February 1, 2007, all of her annual leave
requests were denied;
(2) her supervisor humiliated her by removing her from her zone;
(3) management failed to comply with the EEOC decision involving expunging
wrongful disciplinary action in her Official Personnel File, denial of
interview for promotions, public disclosure of confidential matters,
failure to reinstate sick leave and annual leave in a timely manner,
and constant harassment in the workplace; and
(4) she was the only supervisor removed from her existing position by
Officer-in-Charge.1
On March 2, 2007, the agency issued the instant final decision.
Therein, the agency dismissed complainant's complaint pursuant to 29
C.F.R. � 1614.107(a)(2), on the grounds that it was `untimely filed.
The agency determined that complainant received the Notice of Right to
File a Discrimination Complaint (hereinafter "Notice") on January 27
2007, as confirmed by a Postal Service Track and Confirm computerized
tracking system, but that complainant waited more than fifteen days to
file the formal complaint.2
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so.
Based on a thorough review of the record and consideration of the
arguments on appeal, the Commission concludes that the agency dismissal,
on the ground of untimely filing of the formal complaint, was improper.
Specifically, the record contains insufficient evidence reflecting
complainant's receipt of the Notice on January 27, 2007, as determined by
the agency. The record contains a United States Postal Service "Track &
Confirm" print-out, which indicates a delivery on January 27, 2007 in
"Lilburn, Georgia 30047" without any further details of the address.
There is no evidence, other than this generalized reference to a city
and zip code, indicating that complainant actually received the Notice.
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).
As it is undisputed that complainant filed her formal complaint on
February 13, 2007, and there is inadequate evidence of complainant's
receipt of the Notice, we find that complainant's formal complaint was
timely filed.
The agency's final decision dismissing complainant's complaint on
the grounds that it was untimely filed is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims 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 (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 77960,
Washington, D.C. 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 (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
December 31, 2008
Date
1 The record reflects that in its final decision, the agency noted
that complainant raised claims (3) - (4) in the instant complaint.
The agency stated, however, that these claims were not brought to the
attention of an EEO Counselor; and that these issues were the results
of an EEOC Order for Agency Case No. 4H-300-0239-02.
2 The fifteenth day following complainant's receipt of the decision fell
on Sunday, February 11, 2007, requiring the extension of the 15-day
filing period to the next business day, or Monday, February 12, 2007.
See 29 C.F.R. � 1614.604(d).
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0120072222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
5
0120072222