The opinion of the court was delivered by: Peck, United States Magistrate Judge.
Plaintiff Pierre C. Taylor brought this Title VII action
against the United States Postal Service for race discrimination
in employment arising out of disciplinary action against him
following a confrontation with a coworker on June 18, 1997.
(Id. at 3-4.) Presently before the Court is the Postal
Service's motion to dismiss, arguing that Taylor failed to
exhaust available administrative remedies by failing to comply
with the deadline for filing an agency complaint and allegedly
ignoring requests for information from Postal Service Equal
Employment Opportunity ("EEO") investigators.*fn1 Taylor
answered the Postal Service's arguments by asserting that he
never received communications from the EEO investigator.
For the reasons set forth below, the Postal Service's motion is
DENIED. While it is disputed whether Taylor failed to cooperate
or never received the written request for information, that
factual dispute is not material. The Postal Service EEO office
did not ask Taylor for information until long after 180 days from
the time he filed his EEO complaint, and therefore Taylor had a
right to sue once the 180 days had passed.
42 U.S.C. § 2000e-16(c).
The undisputed facts material to the pending motion are as
This lawsuit stems from an altercation between Taylor and a
co-worker on June 18, 1997, as a result of which Taylor was
suspended for seven days, from September 6, 1997 to September 13,
1997. (Compl. ¶¶ 5, 8; Anderson Aff.Ex. A: Investigative File
Exhibits, 6/19/97 Memo to Pierre Taylor.) On June 18, 1997,
Taylor initiated an informal complaint and counseling with the
Postal Service's EEO office. (Gov't Br. at 15; Anderson Aff.Ex.
A: Counselor Reports, "Informal Complaint of Discrimination.") On
August 22, 1997, after his final interview with the counselor,
Taylor received and signed notice of his right to file a formal
complaint of discrimination within 15 days. (Id.) Seventeen
days later, on Monday, September 8, 1997, he hand delivered a
formal complaint, dated as of September 6, 1997, to the EEO
office. (Gov't Br. at 5-6; Anderson Aff.Ex. A: Formal Complaint.)
The Postal Service EEO office informed Taylor by letter dated
September 18, 1997 that two of his allegations had been dismissed
but that his main complaint, that he was improperly suspended,
would be investigated. (Gov't Br. at 6; Anderson Aff. Ex. A:
Issues to be Investigated, 9/18/97 Letter to Taylor.) That letter
also advised Taylor to "be prepared to go forward with your case
when the EEO Counselor/Investigator contacts you." (Id.)
Nothing further happened until one year later. On September 18,
1998, the EEO investigator requested by certified mail a sworn
affidavit from Taylor and scheduled a meeting with him. (See
Gov't Br. at 7-8; Anderson Aff.Ex. A: Miscellaneous
Correspondence, 9/18/98 Letter to Taylor.) The letter was
returned unopened and the meeting never took place. (Id.) A
second letter was sent on October 7, 1998, but the parties
dispute whether Taylor ever received it. (Id.; Taylor 5/2/00
Aff. ¶¶ 2-3.)
In any case, the Postal Service's EEO office completed its
investigation without Taylor's input. (See Anderson Aff.Ex. A:
Investigation, Affidavits and Exhibits.) The EEO investigator
from two of Taylor's supervisors, performed a comparative
analysis of the ethnic breakdown in Taylor's unit, and prepared a
detailed investigative report dated March 19, 1999. (Id.) On
March 22, 1999, more than a year and a half after the original
EEO complaint was filed, the Postal Service EEO office sent
Taylor a copy of its investigative file, along with a confusing
letter advising him, among other things, of his right to request
a final agency decision, his right to request a hearing, and his
right to sue 180 days after his formal complaint was filed.
(Anderson Aff.Ex. A: Post-Investigation, 3/22/99 Letter to
Taylor; see also Gov't Br. at 10.) Taylor interpreted this as a
"right to sue" letter and filed his complaint in this Court on
June 3, 1999. (Compl. at 1, 5 & ¶ 12 & attached 3/22/99 Letter;
see also Gov't Br. at 10-11.) Shortly thereafter, on July 23,
1999, the Postal Service EEO Office issued a final decision on
the merits, finding no discrimination. (Anderson Aff.Ex. B:
7/23/99 Decision; see also Gov't Br. at 11.)
The Postal Service moves to dismiss, alleging that Taylor
failed to exhaust his administrative remedies by: (1) filing an
untimely formal EEO complaint more than 15 days after his final
EEO counseling interview in 1997 (Gov't Br. at 13-18), and (2)
failing to respond to the EEO office's requests for information
in September 1998 (id. at 19-23).
I. TAYLOR FILED HIS FORMAL POSTAL SERVICE EEO COMPLAINT WITHIN
THE REQUIRED FIFTEEN-DAY LIMIT
Under the relevant regulations, a postal employee who believes
that he or she has been discriminated against must contact an EEO
counselor within 45 days of the date of the alleged
discriminatory incident or personnel action.
29 C.F.R. § 1614.105(a)(1); see generally 29 C.F.R. § 1614.101 et seq. If
counseling is not successful, the counselor is required to inform
the aggrieved employee that he or she has a right to file a
formal EEO complaint. 29 C.F.R. § 1614.105(d). The employee's
receipt of this notice triggers a 15-day period within which to
file a formal EEO complaint. 29 C.F.R. § 1614.106(b). Failure to
comply with these time limits is grounds for the EEO office to
dismiss the complaint without a hearing.
29 C.F.R. § 1614.107(a)(2).
The Postal Service argues that "[h]aving received the Notice of
Right to File on August 22, plaintiff therefore had until
September 6, 1997 to file a formal EEO complaint. However,
plaintiff did not file his EEO complaint until September 8, 1997,
when he hand-delivered the complaint to the EEO office." (Gov't
Br. at 15-16; accord, Gov't Reply Br. at 3.)
In the words of Dr. John H. Watson, "`As to your dates, that is
the biggest mystification of all,'" to which Sherlock Holmes
responded "`Well, now, let us take the dates first.'" Arthur
Conan Doyle, "The Adventure of the Creeping Man" in The Casebook
of Sherlock Holmes. To go from the literary to the instant case,
fifteen days from August 22, 1997 was September 6, 1997, a
Saturday. Since the deadline fell on a Saturday, it was extended
as a matter of law to Monday, September 8, 1997.
29 C.F.R. § ...