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Symko v. Potter

August 30, 2007

ROXANNE K. SYMKO PLAINTIFF,
v.
JOHN E. POTTER, IN HIS OFFICIAL CAPACITY AS POSTMASTER GENERAL OF THE UNITED STATES DEFENDANT.



The opinion of the court was delivered by: Louis F. Oberdorfer United States District Judge

MEMORANDUM OPINION

In this Title VII case, the plaintiff, Roxanne K. Symko, alleges that her former employer, the United States Postal Service, illegally discriminated against her on the basis of sex and in retaliation for prior complaints, resulting in her losing her job in May 2002. The defendant has moved to dismiss or, in the alternative for summary judgment, on the ground that the plaintiff failed to timely exhaust administrative remedies.*fn1 For the reasons stated herein, an accompanying Order denies the defendant's motion to dismiss.

I. BACKGROUND

A. Facts

Symko began working for the United States Postal Service on June 25, 1983. On June 30, 2001, she was involuntarily reassigned from her position as Manager, Advertising and Promotion (which she had held since August 1997) to the position of Manager, Special Projects, New Business Design. Record at 80. As a result of the transfer, neither Symko's salary nor grade changed, but the salary ceiling for her new job was $105,749, instead of $121,000.

1. Agency Proceedings (Part I)

On August 14, 2001, Symko sought counseling through the Equal Employment Opportunity Office within the Postal Service.*fn2 Record at 206. On the "Information for Precomplaint Counseling" form that Symko submitted, she alleged that her June 2001 transfer was an "adverse action" because it was an "intentional effort to remove me from the USPS by placing me in a vulnerable competitive area likely to be dissolved with restructuring" and because it placed her in a position with a lower salary ceiling, impacting her eligibility for future merit increases and other associated benefits. Id. at 207. She alleged that the transfer was discriminatory because it was based on her sex, her age, and/or in retaliation for prior Equal Employment Opportunity activity in 1994, and asked that she be reassigned to a position equal to the one she had previously held.

By letter dated November 30, 2001, the EEO counselor at the Postal Service assigned to Symko's case, Sylvia Exum, informed Symko that the Postal Service had declined to resolve her informal complaint and, therefore, that she "ha[d] the right to file a formal complaint." Id. at 199. Exum's letter included Postal Service Form 2579-A, "Notice of Right to File Individual Complaint," for Symko to sign and return. It also included a blank Postal Service Form 2565, "Formal Complaint of Discrimination" for Symko to fill out if she chose to file a formal complaint. The letter advised Symko that:

[y]our formal complaint must be filed (Postmarked) within fifteen (15) calendar days of your receipt of this notice to the following address:

U.S. Postal Service Office of Compliance and Appeals 475 L'Enfant Plaza SW, Room 9431 Washington, DC 20260-4135

Exum's letter concluded, "If I can be of further assistance, please feel free to call." Id. The letter did not include a citation to the regulation that set forth the 15-day time limit for filing a formal complaint, see 29 C.F.R. § 1614.106(b), nor inform Symko that although the time limits were "subject to waiver, estoppel and equitable tolling," there were no other bases for extending the time allotted, see 29 C.F.R. § 1614.604(c). Symko received Exum's letter and the attached forms on December 14, 2001, making her formal complaint due on December 29, 2001.

On December 29, 2001, proceeding pro se, Symko sent a letter to Exum, via certified mail, which stated:

I am in receipt of your memorandum denying resolution of matters cited in the above referenced case and wish to inform you, within the required 15-day timeframe, of my intent to proceed with a formal complaint. However to allow for holiday travel, this [letter] requests a 10-day extension for filing of required formal documents.

Record at 193. This letter was addressed to:

Sylvia Exum U.S. Postal Service Office of Compliance and Appeals 475 L'Enfant Plaza, SW, Room 9431 Washington, DC 20260-4135

For reasons that are not entirely clear from the record, the Postal Service did not receive Symko's letter until January 17, 2002. In the meantime, on January 8, 2002, Symko, still proceeding pro se, filed her Formal Complaint with the Postal Service's Office of Compliance and Appeals. Her complaint alleged that her reassignment had been "orchestrated to place a white male into my position," and with knowledge that the organization to which Symko was transferred would be eliminated in the near future due to a reduction in force and that, if that happened, Symko would have no right to placement in her prior organization. Record at 187. She alleged discrimination on the basis of sex and retaliation for prior EEO activity. After filing her complaint, Symko retained an attorney to represent her. Record at 192.

Section 1614.107(a) of the Equal Employment Opportunity Commission Regulations "sets out the circumstances under which an agency may dismiss a complaint." EEO MD-110. It provides, in relevant part:

§ 1614.107 Dismissals of complaints.

(a) Prior to a request for a hearing in a case, the agency shall dismiss an entire complaint:

(2) 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), or that raises a matter that has not been brought to the attention of a Counselor and is not like ...


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