Appellant,
v.
Michael P.W. Stone, Secretary, Department of the Army, Agency.

Request No. 05920623
Appeal No. 01921183
Agency No. 91-12-0085

January 14, 1993

DENIAL OF REQUEST TO REOPEN

INTRODUCTION

On May 1, 1992, the Department of the Army (hereinafter referred to as the agency) initiated a request to the Equal Employment Opportunity Commission. (EEOC or the Commission) to reopen and reconsider the decision in Appellant v. Department of the Army, EEOC Appeal No. 01921183 (April 14, 1992). EEOC Regulations provide that the Commission may, in its discretion, reopen and reconsider any previous decision. 29 C.F.R. 1613.235(a). The party requesting reopening must submit written argument or evidence which tends to establish one or more of the following criteria: 29 C.F.R. 1613.235(b)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. 1613.235(b)(2) (the previous decision involved an erroneous interpretation of law or regulation, or a misapplication of established policy); and 29 C.F.R. 1613.235(b)(3) (the decision is of such exceptional nature as to have effects beyond the actual case at hand).[FN1] For the reasons set forth herein, the agency's request is denied.

ISSUE PRESENTED

The issue presented is whether the previous decision properly reversed the agency's final decision rejecting appellant's formal complaint on the grounds that it was untimely filed.

BACKGROUND

In her complaint dated October 26, 1991, appellant alleged discrimination based on sex (female), age (47), and reprisal (prior EEO activity) when:

1) The District Equal Employment Opportunity Officer was biased in the processing of her complaint filed June 21, 1991. Specifically, he violated her rights to process her complaints without interference, coercion, or restraint, as well as her Fifth Amendment rights to an impartial official and due process; and

2) The District Equal Employment Opportunity Counselor was biased and hostile in the processing of her EEO complaints.

In its final decision, the agency stated that '(t)his refers to your discrimination complaint dated October 26, 1991, date of postmark to the Secretary of the Army is unknown, and date stamped as received on November 6, 1991, and received by (the EEO Office) on December 4, 1991.' Noting that appellant received the Notice of Final Interview on October 12, 1991 and relying on November 6, 1991 as the date of receipt, the agency rejected appellant's complaint on the grounds that she had failed to file her written complaint within fifteen (15) days after receiving the Notice of Final Interview.

Appellant appealed the decision to this Commission, contending that she timely mailed her complaint on October 26, 1991 and that there was a witness to the mailing. Upon review, the Commission reversed the agency's final decision and remanded appellant's complaint for further processing. The Commission noted that the agency had failed to provide a copy of the envelope in which appellant mailed her complaint and therefore was unable to establish a postmark date. The Commission also noted that appellant's complaint was date stamped as received on December 4, 1991, not November 6, 1991 as the agency contended. Consequently, the Commission found that the record was insufficient to support the agency's determination that the complaint was untimely because the record was inconclusive as to the date on which the agency actually received the complaint.

In its request to reopen, the agency contends that the previous decision was in error. Specifically, the agency contends that the evidence of record clearly establishes that it received the complaint on November 6, 1991. The agency asserts that the previous decision was 'confused' because the initial receipt date of November 6, 1991 was stamped on the copy of the Notice of Final Interview which accompanied the complaint, while the EEO Office's receipt date of December 4, 1991 was stamped on the complaint form itself. The agency argues that because there was no postmark, the complaint had to be received on November 1, 1991, i.e., within 5 days of the expiration of the filing period, to be timely under the Commission's regulations. See 29 C.F.R. 1613.240(b). Because the agency did not receive the complaint until November 6, 1991, it therefore was untimely.

ANALYSIS AND FINDINGS

The Commission may, in its discretion, reopen and reconsider any previous decision when the party requesting reopening submits written argument or evidence which tends to establish that at least one of the criteria of 29 C.F.R. 1613.235(b) is met. In order for a case to be reopened, the request must contain specific information that meets the criteria referenced above.

In this case, the agency contends that the previous decision erred when it concluded that the evidence of record was insufficient to support its determination that appellant failed to timely file her complaint. It argues that in the absence of a postmark, appellant's complaint would be timely only if received within five days of the end of the filing period. Because appellant received the Notice of Final Interview on October 12, 1991 and because the earliest date stamp is November 6, 1991, the agency would have us conclude that she failed to timely file her complaint.

Our regulations provide that '(a) complaint shall be deemed filed on the date it is received, if delivered to an appropriate official, or on the date postmarked if addressed to an appropriate official designated to received complaints.'29 C.F.R. 1613.214(a)(3). In her appeal letter, appellant asserted that she mailed her complaint to the agency on October 26, 1991, that another individual witnessed the mailing, and that the postal employee with whom she spoke assured her that her complaint would be postmarked on that date. The agency does not contest appellant's assertion that she properly mailed her complaint. Instead, it merely states--without explanation--that it does not have an envelope with a postmark and that the November 6, 1991 date stamp therefore is the date of its receipt of the complaint for purposes of establishing timeliness.

The agency has the burden of providing evidence and/or proof to support its final decisions. See Gens v. Dep't of Defense, EEOC Request No. 05910837 (January 31, 1992). Here, the agency apparently did not retain the envelope in which appellant mailed her complaint. Thus, there is no way to determine whether there was a postmark and, if so, the date thereof. Consequently, the agency cannot establish the filing date from the postmark. Further, because there is no envelope, the agency cannot invoke the five-day rule pursuant to 29 C.F.R. 1613.240(b). The rule was intended to apply in cases in which a mailing envelope bears an illegible postmark or is without any postmark whatsoever, not in cases in which the agency has failed to retain the envelope. Finally, we note that under the facts and circumstances of this case, it simply is irrelevant whether the complaint was date stamped November 6, 1991 or December 4, 1991.

Based on the foregoing, the Commission finds that the agency's request to reopen has failed to establish that (1) there is new and material evidence pursuant to 1613.235(b)(1); or that the Commission's previous decision involved an erroneous interpretation of law pursuant to 1613.235(b)(2); or that this decision is of such exceptional nature as to have effects beyond the actual case at hand pursuant to 1613.235(b)(3). Accordingly, we deny the request to reopen.

CONCLUSION

After a review of the agency's request to reopen, the previous decision, and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. 1613.235(b), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 01921183 remains the Commission's final decision in this case. The agency must comply with the Order in that decision as restated below. There is no further right of administrative appeal from a decision of the Commission on a Request to Reopen.

ORDER

The agency is ORDERED to process the remanded allegations in accordance with EEOC Regulations 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 (K1092)

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.

STATEMENT OF APPELLANT'S RIGHTS- ON REQUEST TO REOPEN

RIGHT TO FILE A CIVIL ACTION (R/A1092)

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: (1) WITHIN THIRTY (30) CALENDAR DAYS of receipt of the final decision by the agency on your complaint sub-sequent to this remand; or (2) AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your complaint with the agency, or your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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:

Frances M. Hart
Executive Officer
Executive Secretariat

[FN1]. 29 C.F.R. Part 1614 (57 Fed. Reg. 12634) became effective October 1, 1992. This rule revises the way federal agencies and the Equal Employment Opportunity Commission will process administrative complaints and appeals of employment discrimination filed by federal employees and applicants for federal employment. Because this appeal was filed prior to the effective date of Part 1614, the Part 1613 regulations are applicable to this case.