05971067
05-06-1999
Angelia D. Hunter v. United States Postal Service
05971067
May 6, 1999
Angelia D. Hunter, )
Appellant, )
) Request No. 05971067
v. ) Appeal No. 01970255
) Agency No. 1C-174-0100-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
__________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
On September 16, 1997, the United States Postal Service (hereinafter
referred to as the agency) timely initiated a request to the Equal
Employment Opportunity Commission (the Commission) to reconsider
the decision in Angela D. Hunter v. Marvin T. Runyon, Jr., Postmaster
General, United States Postal Service, EEOC Appeal No. 01970255 (August
14, 1997), received on August 18, 1997. EEOC regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation, or material fact,
or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons
that follow, the agency's request is GRANTED.
ISSUE PRESENTED
Whether the previous decision correctly determined that the agency
improperly dismissed appellant's complaint on the grounds that she filed
her formal complaint in an untimely manner.
BACKGROUND
The record indicates that on June 24, 1996, the appellant, an applicant
for employment, contacted an EEO counselor alleging discrimination based
on physical disability (perceived, manic depressive disorder) when she
was not hired as a Transitional Employee. Unable to resolve the matter,
the agency mailed appellant a letter dated July 19, 1996, informing her
of the right to file a formal complaint (notice). The certified mail
return receipt (PS Form 3811)that accompanied the notice did not indicate
the date of receipt by appellant. The agency, however, noted that it
received the PS Form 3811, bearing appellant's signature, on July 24,
1996. Therefore, the agency concluded that the notice had to have been
received by appellant no later than July 23, 1996. In an envelope bearing
the postmark of August 16, 1996, appellant filed her formal complaint.
She also enclosed a copy of the notice, which she dated August 8, 1996.
The agency dismissed appellant's complaint on the grounds that it was
filed in an untimely manner. On appeal, appellant, through her attorney,
R-1, argued that:
[a]t the time that she received the EEO complaint of discrimination forms,
the claimant was not represented and did not have the benefit of legal
counsel.
R-1 also argued that:
[t]he letter received from the Postal Service setting forth the
requirements for filing a formal complaint did not clearly set out the
time requirements for filing, nor did it inform the claimant of the
consequences of not filing her EEO complaint of discrimination within
the fifteen (15) day time limit.
The previous decision reversed the agency's dismissal of appellant's
complaint. Apparently, the previous decision's determination was based
on the fact that although the EEO counselor's report listed R-1 as
appellant's representative, and provided R-1's name, address and phone
number, there was no evidence that the agency served R-1 with a copy of
the notice.
In its request to reconsider (RTR), the agency argued that the previous
decision erred in finding that appellant was represented by an attorney at
the time the notice was issued. According to the agency, "[t]he record
is clear that appellant did not name the attorney as her representative
until the August 16, 1996, filing of her formal complaint in this matter."
The agency also noted R-1's statement that appellant was not represented
by an attorney at the time she received the notice.
Appellant opposed the agency's RTR. R-1, emphasizing the fact that
appellant was not represented by an attorney, argued that the documents
sent by the agency did not inform her of the consequences of not filing
her formal complaint within 15-days.
ANALYSIS AND FINDINGS
The Commission finds that the agency's RTR meets the criterion of 29
C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission
to grant the agency's request. According to EEOC Regulation 29
C.F.R. �1614.105(c), "[w]hen advised that a complaint has been filed
by an aggrieved person, the counselor shall submit a written report
within 15-days to the agency office that has been designated to accept
complaints and the aggrieved person concerning the issues discussed
and action taken during counseling." There is no dispute that at the
time the formal complaint was filed, R-1 was representing appellant.
Since the EEO counselor's report was prepared after appellant's complaint
was filed, not before, the previous decision, to the extent it relied
on the report to establish the agency's knowledge of R-1, erred.
Furthermore, R-1 indicated, both on appeal and in her brief opposing
the agency's RTR, that appellant, when she received the notice, was not
represented by an attorney. Therefore, we find that the agency properly
served the notice upon appellant. Since appellant's complaint was not
received until August 16, 1996, we find that it was filed in an untimely
manner, and was properly dismissed.<1>
Contrary to R-1's assertions concerning the notice, the document
specifically informed appellant that: 1) she had the right to file a
formal complaint within 15-calendar days of the date the notice was
received; and 2) the complaint would be deemed timely filed if it were
delivered in person or postmarked before the expiration of the 15-calendar
day filing period. Therefore, we find it reasonable to conclude that
appellant was on notice that her right to file a complaint was contingent
upon it being filed in a timely manner.
CONCLUSION
After a review of the agency's request to reconsider, appellant's
response, the previous decision, and the entire record, the Commission
finds that the request meets the criterion of 29 C.F.R. �1614.407(c)(2).
It is therefore the decision of the Commission to GRANT the request.
The decision in EEOC Appeal No. 01970255 (August 14, 1997) is hereby
REVERSED. The agency's final decision is AFFIRMED. There is no further
right of administrative appeal on a decision of the Commission on a
Request to Reconsider.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
May 6, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1The record contains a document entitled "Information for Precomplaint
Counseling," which was dated July 4, 1996, and received by the agency
on July 19, 1996. Appellant, in the document, indicated that she
was represented by R-1. The Commission will not speculate as to why
appellant listed R-1 as her representative on July 4, 1996 when R-1, on
two separate occasions, informed the Commission that appellant did not
have an attorney when the notice was received on or about July 23, 1996.