Constance Davis,
Complainant,

v. 

Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.

Appeal No. 0120092682

Agency No. 1A-086-0016-08

DECISION

Complainant filed a timely appeal with this Commission from the Agency's
decision dated May 8, 2009, 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. 

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked
as a Custodial Group Leader at the Agency's facility in Trenton, New
Jersey.  Complainant contacted the Agency's EEO Counselor in March 2008.
When the matter could not be resolved informally, Complainant was
issued a notice of right to file which was received by her attorney
on June 9, 2008.  Complainant's attorney indicated that, on June 12,
2008, he filed Complainant's formal complaint alleging that the Agency
subjected her to discrimination on the bases of race (African-American)
and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964 when she was subjected to a hostile work environment
since December 2007.  Complainant indicated that she had been subjected
to verbal abuse; hostile working conditions; having threats and false
accusations made against her; and discriminatory assignment of duties.

The record indicated that Complainant's attorney made an inquiry to
the Agency in March 2009, regarding the processing of the complaint.
The Attorney noted that neither he nor Complainant had heard back from
the Agency on the matter.  The Agency responded to the Attorney's inquiry
and indicated that it did not receive Complainant's formal compliant.
Subsequently, the Attorney submitted another copy of the formal complaint
on April 16, 2009, along with the original cover letter to demonstrate
that he submitted the original complaint to the Agency in June 2008.  

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2).
The Agency indicated that it had mailed Complainant a notice of right to
file a formal complaint back in May 2008 and Complainant did not file
her formal complaint until April 2009.  As such, the Agency determined
that Complainant did not file her formal complaint in a timely manner.

CONTENTIONS ON APPEAL

Complainant appealed.  On appeal, the Attorney provides an affidavit
stating that he personally delivered the envelope with the formal
complaint to a post office mailbox.  He contacted the Agency in March
2009, regarding the status of the complaint.  Complainant indicated
that the Agency requested a copy of the complaint and proof of filing.
He stated that he provided the formal complaint copy and a copy of
his cover letter dated June 12, 2008.  The Agency requested that the
Commission affirm its dismissal of the complaint.

ANALYSIS AND FINDINGS

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 notice of the right to do so.  

The record contains a copy of the notice of right to file which was
received by the Attorney on June 9, 2008.  The record also included that
the copy of the formal complaint was signed by the Attorney on June 12,
2008, and a cover letter from the Attorney to the Agency dated June 12,
2008.  Based on the documents in the record and the Attorney's affidavit
provided on appeal, we find that the Attorney filed the formal complaint
on June 12, 2008, on Complainant's behalf.  The formal complaint was filed
within 15 calendar days of the date the Attorney received the notice.
As such, we determine that the formal complaint was filed in a timely
manner.  Therefore, we find that the Agency's dismissal of the matter
was not appropriate.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we VACATE the Agency's
decision dismissing the matter and REMAND the complaint for further
processing in accordance with the ORDER 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 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), 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

March 24, 2011

__________________
Date


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0120092682





U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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0120092682