U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lee R.1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Request No. 0520140162 Appeal No. 0120132814 Agency No. 4K-210-0039-13 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120132814 (December 11, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reconsidering the previous decision and the entire record, the Commission exercises its discretion under the criteria of 29 C.F.R. § 1614.405(c), to grant the request. ISSUE PRESENTED Was there error in concluding that Complainant's Equal Employment Opportunity (EEO) Counselor contact was untimely? BACKGROUND Complainant alleged that the Agency discriminated against him on the bases of age when he was forced to retire after he received a letter of removal, dated October 25, 2012, for improper conduct, effective November 30, 2012. Complainant alleged that his retiring on November 29, 2012 was constructive discharge. In a decision, dated July 9, 2013, the Agency dismissed the complaint on the grounds that Complainant had failed to contact an EEO Counselor within the 45 days required pursuant to 29 C.F.R. § 1614.107(a)(2). In so concluding, the Agency found that Complainant initiated EEO Counselor contact on February 26, 2013, concerning the alleged discriminatory event on October 25, 2012. The Agency noted that an EEO Poster 72 (Equal Employment Is the Law) was on display at the facility where Complainant worked and that the poster set forth the 45- day requirement for initiating timely EEO Counselor contact. Addressing Complainant's allegation that he was unable to request counseling in a timely manner, the Agency noted that Complainant alleged that when he called the telephone number identified on the poster, a recording informed him that the number was a non-working number. In its decision, the Agency identified the contact number on the poster as 888-EEO-USPS which worked. The Agency also noted that Complainant could have obtained the number from another facility or from the Agency's website. In our previous decision, the Commission affirmed the Agency's dismissal. We determined that the alleged discriminatory event occurred on October 25, 2012 and that, consequently, when Complainant contacted an EEO Counselor on February 26, 2013, the contact was untimely. We found that Complainant had a reasonable suspicion of discrimination to initiate timely contact and that he had not presented any persuasive arguments or evidence warranting an extension pursuant to 29 C.F.R. § 1614.604(c). In his request to reconsider, Complainant asserts that in its decision, the Commission failed to address his documentary evidence that he had contacted an EEOC Administrative Judge (AJ) in a letter, dated December 8, 2012, to file his complaint of age discrimination. That contact, Complainant argues, was within 45 days of the alleged discrimination and therefore timely. He recounted that he had tried calling the telephone number on the EEO poster multiple times but that it was a non-working number. He also urges that the EEO Poster did not contain the alphanumeric number referenced in the Agency's decision and the number provided on the poster consisted only of numbers with no letters. Complainant also recounted that his supervisor laughed at him and walked away when he asked about obtaining the Agency EEO number. He asserts that when he contacted the EEO office on February 26, 2013, it was within five days of his having received the AJ's response to his December 8, 2012 letter. Complainant noted that, according to the AJ's reply, his letter of December 8, 2012, would be considered the date of his EEO Counselor contact and therefore timely. The Agency did not submit a brief or statement in response to Complainant's request to reconsider nor did it do so in Complainant's initial appeal. ANALYSIS AND FINDINGS After reconsideration of the appellate decision, the entire record, and Commission precedent, the Commission exercises its discretion to reconsider the matter herein under the criteria of 29 C.F.R. § 1614.405(c). EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, 45 days of the effective date of the action. The 45-day time requirement is subject to waiver, estoppel, and equitable tolling. See 29 C.F.R. § 1614.604(c). The record contains the EEO Counselor's Report which notes that Complainant initiated EEO Counselor contact on February 26, 2013. The EEO Counselor indicated in the report that on June 4, 2013, she had verified that EEO Poster 72 was on display in Complainant's facility. Contained in the record is a letter, dated December 8, 2012, from Complainant to the EEOC's Baltimore Field Office in which he recounted that he had called the telephone numbers on the EEO posters in his work facility but the telephone numbers did not work. He claimed that he talked to his supervisor and he laughed at him and walked off. In a letter, dated February 21, 2013, the EEOC's Chief Administrative Judge (AJ) in the Baltimore Field Office's responded to Complainant's December 8, 2012 letter. In the letter, the AJ recounted Complainant's attempt to call the Agency using the number provided on the EEO poster without success. The AJ informed Complainant that to start the process, he was required to first seek counseling with the Agency. She suggested that he go to the Agency to find an EEO Counselor or to contact an EEO Counselor at the Agency's Main Post Office. The AJ also suggested that, if Complainant continued to have difficulties, he should call the Commission's Office of Federal Operations and Complainant was provided two telephone numbers. She informed Complainant that he needed to inform the EEO Counselor that he had attempted to seek counseling. The AJ informed Complainant that his December 8, 2012 letter "should serve as the date of initial contact with the EEO office." Where 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." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994)(quoting Williams v. Dep't of Def., EEOC Request No. 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). As an initial matter, the Commission addresses the date of the alleged discrimination. In our decision, we determined that it was October 12, 2012. However, that finding was error. October 12, 2012, was the date when Complainant was sent notice of his removal. The effective date of the removal was not until November 30, 2012. Therefore, pursuant to 29 C.F.R. 1614.105(a)(1), Complainant would have had 30 days from November 30, 2012, not October 12, 2012, to initiate timely EEO Counselor contact. Nonetheless, the error was harmless because ultimately, Complainant was not removed. He instead retired on November 29, 2012, which, we find, is the date of the alleged discriminatory harm and the date that should be used to calculate the timeliness of EEO Counselor contact. Complainant has asserted, as before, that he tried on several occasions to contact the EEO Counselor by telephone to no avail.2 Complainant's claims that he tried to contact the EEO Office are consistent with his December 8, 2012 letter to the AJ and reflected his intention to pursue the EEO process. Although the EEO Counselor's Report indicates that the Counselor had seen a copy of the AJ's letter, there is no indication in the EEO Counselor's Report that the EEO Counselor ever made inquiry into Complainant's claims concerning the reason for delayed contact. In addition, though the EEO Counselor checked off in her report that the EEO Poster 72 was on display, the Agency provided no evidence that this was the poster on display when Complainant obtained a telephone number and what information the poster contained. The Agency did not produce a copy of the poster itself for the record. There is no sworn statement from any Agency official indicating whether the poster it referenced in its decision was up-to-date; whether it was the same poster on display when Complainant obtained a telephone number from it; and how long the referenced poster had been placed on display. See Sewell v. Dep't of Transportation, EEOC Request No. 05A20904( Apr.1, 2004)(untimely EEO Counselor contact where affidavit indicating when EEO poster was on display and a copy of EEO poster provided). Further, the EEO Counselor did not check for the poster's existence until in June 2013, months after Complainant's February 26, 2013, contact with her and months after Complainant's attempts to contact the EEO office. Lacking an affidavit or sworn statement attesting to the poster and its information, and in light of Complainant's dispute concerning the telephone information provided on the poster, (an assertion consistent with Complainant's documented attempt to pursue EEO counseling) and his documented attempt to pursue EEO counseling in a timely manner, the Commission cannot conclude that the Agency satisfied its burden on the issue of timeliness by providing no more than an unsupported assertion in its decision. See Quinn v. Dep't of the Army, EEOC Appeal No. 0120100695 (May 18, 2010)(no sworn statement from an EEO official about EEO posting or a copy of posting), reconsideration denied, EEOC Request No. 0520100429 (July 28, 2010). Under these circumstances, we exercise our discretion to reconsider the previous determination and apply the principle of equitable estoppel to toll the time limitation period.3 CONCLUSION After reconsidering the previous decision and the entire record, the Commission finds that Complainant's request meets the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to grant the request. The decision of the Commission in Appeal No. 0120132814 is VACATED and the agency's decision is REVERSED. There is no further right of administrative appeal on the decision of the Commission on a Request to Reconsider. 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. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 1-28-16 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. 2 In a November 17, 2013 letter in the initial appeal, Complainant informed the Office of Federal Operations that he had written a letter to the AJ because all EEO posters in the facility where he had worked contained non-working numbers. He also stated that he received no cooperation from the Postmaster or the Assistant Postmaster when he sought the correct EEO Counselor contact information. Complainant noted that the "last two times" when he had checked, "old posters" were still on display at his previous work facility. 3 The Commission notes that, in other decisions, we have considered what constitutes proper contact for initiating counseling. See Allen v. U.S. Postal Serv., EEOC Request No. 05950933 (July 8, 1996)(official "logically connected" to the EEO process and intent to pursue the EEO process). We also point out that the Commission has held that where proper appeal rights have been given, an appeal is untimely filed where the appeal is mailed to the wrong office, even if it would have been timely filed if mailed directly to the Commission. Henry v. Dep't of Veterans Aff., EEOC Request No. 05901116 (Nov. 30, 1990). But see, York v. Dep't of Def. , EEOC Request No. 05A00946 (Dec. 7, 2001); Hyland v. Dep't of Education, EEOC Request No. 05930037 (May 27, 1993)(complainant sent appeal to the EEO Office and not to Commission); Rodriguez v. Dep't of the Air Force, EEOC Request No. 05940933 (June 2, 1995)(confused complainant mailed appeal within limitations period to an EEOC District Office); Thompson v. Dep't of the Army, EEOC Request No. 05940588 (Feb. 24, 1995)(complainant filed appeal with agency's EEO office); Lord v. U.S. Postal Serv., EEOC App. No. 05890175 (June 9, 1989)(agency should have promptly forwarded appeal filed with agency to the Commission). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 7 05-2014-0082