Betty L. Ocilka v. United States Postal Service
01980919
March 17, 2000
Betty L. Ocilka, )
Complainant, )
)
v. ) Appeal No. 01980919
) Agency No. 4-C-440-0274-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. 791 et seq.<1> The final agency decision was issued on October
23, 1997. The appeal was received by the Commission on November 10,
1997. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. §1614.402(a)),
and is accepted in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified at 29 C.F.R. §1614.405).
ISSUE PRESENTED
The issue presented is whether the agency properly dismissed the complaint
on the grounds that complainant failed to file her formal EEO complaint
in a timely manner.
BACKGROUND
Complainant initiated contact with an EEO Counselor on March 12, 1997.
Complainant's attorney received on April 17, 1997, a notice of right to
file individual complaint. The notice stated that complainant has the
right to file a formal complaint within 15 calendar days of the date that
the notice is received. In a formal EEO complaint dated April 29, 1997,
complainant claimed that she was discriminated against on the basis of
her physical disability (job-related injury) when on January 31, 1997,
she was notified that she was being reassigned from a modified letter
carrier position to a part-time flexible position.
In its final decision, the agency dismissed the complaint on the grounds
that it was not filed in a timely manner. According to the agency,
complainant received her notice of right to file a discrimination
complaint on April 17, 1997, but did not file her formal complaint
until May 16, 1997, after the expiration of the 15-day filing period.
The agency determined that the formal complaint was received in an
envelope bearing the postmark May 16, 1997. A copy of this envelope is
contained in the record.
On appeal, complainant submits a sworn affidavit in which she states
that she received the notice of right to file an individual complaint on
April 17, 1997, and that she submitted her formal complaint by overnight
mail. We note that complainant states that she is referring to Agency
No. 4-C-440-0162-97. In support of her appeal, complainant submits a copy
of an express mail envelope that indicates it was mailed on April 29,
1997, to the Senior EEO Specialist. Complainant also submits a letter
dated April 29, 1997, from her attorney to the Senior EEO Specialist.
This letter indicated that a complaint was being filed in Agency
No. 4C-440-0274-97.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. § 1614.107(a)(2)) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency
extends the time limits in accordance with § 1614.604(c).
The record reveals that complainant received a notice of the right to
file a formal discrimination complaint on April 17, 1997. Complainant
maintains that she timely mailed her formal complaint to the agency on
April 29, 1997. The agency determined that the formal complaint was
received in an envelope postmarked May 16, 1997, after the expiration
of the 15-day filing period. We note that in her affidavit complainant
referenced a complaint number (Agency No. 4-C-440-0162-97) that is
not the matter presently under review (Agency No. 4-C-440-0274-97).
In light of the overnight envelope postmarked April 29, 1997, and the
accompanying letter with the same date from complainant's attorney,
it appears that a complaint was filed at that time. However, it is not
clear whether the complaint filed at that time was the instant complaint
or a different EEO complaint. The record provided by the agency contains
a copy of an envelope with the postmark May 16, 1997. It is necessary
that a supplemental investigation be undertaken to determine whether
the instant complaint was filed on April 29, 1997, or May 16, 1997.
Accordingly, the agency's dismissal of the complaint on the grounds of
untimeliness is VACATED. This matter is hereby REMANDED for further
processing pursuant to the ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
The agency shall conduct a supplemental investigation to determine when
complainant filed her formal EEO complaint in Agency No. 4-C-440-0274-97.
In making this determination, the agency shall attempt to ascertain what,
if anything, was filed by complainant in the express mail envelope dated
April 29, 1997, and the envelope postmarked May 16, 1997. The agency
shall insert in the record documentation of its findings in this matter.
Thereafter, the agency shall decide whether to process or dismiss the
complaint. The supplemental investigation and issuance of the notice
of processing and/or final decision must be completed within thirty
(30) calendar days of the date this decision becomes final. A copy of
the final decision and/or notice of processing must be submitted to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. §1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (R1199)
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 (Z1199)
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:
March 17, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.