Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120143230 Agency No. 4C-080-0085-14 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated August 18, 2014, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for a Custodian position at the Agency's South Jersey Processing & Distribution Center facility in Bellmawr, New Jersey. On July 31, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), national origin (Italian), and sex (male) when, on February 10, 2014, Complainant was informed that the Agency would not hire him. The pertinent record shows that Complainant applied for the position of Custodian. After the Agency interviewed Complainant and tested him for employment, the Agency told Complainant to report back on February 10, 2014 for finger printing and a medical assessment. On February 10, 2014, when he reported, the Human Resources Specialist told Complainant that he was not being hired. When he asked why, she replied "we are just not hiring you." On March 26, 2014, Complainant claims that he requested pre-complaint counseling when he contacted the National EEO Complaint line. Complainant provided a copy of his telephone records which showed that he placed the call to the National EEO Complaint line. The Agency does not dispute that its records show that Complainant placed a two minute call to its National EEO Complaint line on March 26, 2014. The Agency asserts, however, that it has no record of a complaint being initiated as a result of that contact. Instead, the Agency maintains that its records reflect that Complainant's first contact was on April 18, 2014, which was outside of the 45-day period for initiating timely EEO contact. Agency Decision The Agency dismissed the complaint, reasoning that the "pre-complaint counseling was made 67 days after the alleged discrimination." Complainant's April 18, 2014 contact was therefore untimely. The Agency's decision did not reference Complainant's March 26, 2014 telephone call to the National EEO Complaint line. This appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulations also provide that the agency or the Commission shall extend the time limits when the individual shows that, despite due diligence, he is unable to show that he contacted the Counselor within the time limits, or for other reasons considered sufficient. In this case, the record discloses that the alleged discriminatory event occurred on February 10, 2014 when Complainant was informed that the Agency would not hire him. Complainant telephoned the National EEO Complaint line to initiate contact with an EEO Counselor on March 26, 2014. That is within the forty-five (45) day limitation period. He also offered proof that he made the call with the intent to pursue an EEO complaint. In response to the appeal, the Agency asserts that Complainant's call "was not accepted," because Complainant failed to answer the requisite questions when he called on March 26, 2014. The Agency further states that Complainant was not hired because "records revealed that he had failed to disclose his previous work history." Complainant states that the Agency hired others with similar records, who were outside of his protected group. On appeal, we find that Complainant has presented persuasive arguments and evidence supporting his position that he met the time limit for initiating EEO Counselor contact. Further, 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." The Agency had not shown that Complainant did not make timely contact or why it has no record of Complainant's contact resulting in a complaint. Finally, in its response to the appeal, we find the Agency has addressed the merits of Complainant's complaint without a proper investigation as required by the regulations. We find that the Agency's articulated reason for the action in dispute, i.e., that it refused to hire him due to his work history, goes to the merits of Complainant's complaint. It is irrelevant to the procedural issue of whether he made timely EEO contact or stated a justiciable claim under Title VII. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Therefore, we find that Complainant's complaint was improperly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the decision for further processing, consistent with the decision below. ORDER (E0610) 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 (K0610) 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 (M0610) 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 tends 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), at 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 (R0610) 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 (Z0610) 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 February 19, 2015 __________________ Date 2 0120143230 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120143230