01976639
11-17-1998
Charmyn J. Calderone v. United States Postal Service
01976639
November 17, 1998
Charmyn J. Calderone, )
Appellant, )
)
v. ) Appeal No. 01976639
) Agency No. 1E-801-0069-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated August 6, 1997. The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The appellant indicated in a June 26, 1997 letter to the agency that she
had learned from the EEO counselor that the agency closed her informal
complaint because she had not picked up the notice which the counselor
had sent her. The appellant represented she had been out of state from
May 9 through May 27, 1997 on approved leave and, therefore, could not
pick up the certified letter. The appellant also represented that this
was not the first time the agency had sent her correspondence when she
was out of town.
The final agency decision denied the appellant's request to reopen her
informal EEO complaint. The decision indicated that the appellant had
been sent a notice of final interview which was returned unclaimed to the
EEO office on May 27, 1997. The decision represented that the Postal
Service attempted delivery on two occasions, May 8 and May 13, 1997.
The decision noted that even if the appellant left town on May 9, 1997,
she could have picked up the letter before she left town. The also
agency opined that the appellant's husband should have picked up the
appellant's letter when he claimed a certified letter addressed to him
on May 19, 1997. The decision held that the husband's failure to pick
up the appellant's letter should be attributed to the appellant.
Generally, actual receipt of a document is necessary to commence the
running of a regulatory time limit. Woehr v. United States Postal
Service, EEOC Request No. 05960657 (July 3, 1997). However, a regulatory
time limit may run where due diligence is used to deliver appropriate
rights to a complainant, but the effort is unsuccessful. Id. In the
Woehr case the Commission found that it had acted with due diligence
to provide an appellant with a copy of an appeal decision by mailing
it to the appellant twice, which resulted in six attempts to deliver
the decision over a two-month time span. Therefore, the Commission
found the appellant's request for reconsideration to be untimely even
though the previous decision was ultimately returned to the Commission
by the Postal Service as unclaimed. In reaching this result, the
Commission distinguished the decisions reached in two prior cases,
Hoffman v. United States Postal Service, EEOC Request No. 05950172 (May
23, 1996), and Kellus v. United States Postal Service, EEOC Request No.
05920198 (April 20, 1992). In both of those cases, the agency sent the
notice of rights only one time.
The Commission finds that the agency did not use due diligence in this
case to notify the appellant of her right to file a formal complaint.
The agency sent only one notice and then did nothing more. The agency
did not attempt to send the notice a second time as the Commission did
in the Woehr case. Nor did the agency attempt to deliver the notice at
the appellant's worksite.
As to the stated reasons for the agency's decision, the agency faults
the appellant for not picking up the notice before she left town on May
9, 1997. However, the agency has not shown that it was reasonable or
even possible for the appellant to retrieve the notice from the Postal
Service between the time she received the certified mail notice and
the time she was scheduled to leave town. The agency also faults the
husband's decision not to pick up the appellant's letter and attributes
it to the appellant. However, the Commission finds it reasonable that
the husband would not accept a letter from the EEO Office knowing that
the appellant would not be available to prepare a response.
CONCLUSION
For the reasons stated above, the Commission REVERSES the agency's
administrative closure of the appellant's informal complaint and REMANDS
the informal complaint for processing as ORDERED below.
ORDER
1. The agency is ORDERED to provide the appellant with a copy of the
notice of her right to file a formal complaint in this case within 15
calendar days of the date this decision becomes final.
2. If the appellant files a formal complaint, the agency shall acknowledge
receipt of the complaint as required by 29 C.F.R. �1614.106(d).
3. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall send to the Compliance Officer referenced below, a
copy of the notice of right to file a formal complaint and, if applicable,
a copy of the agency's letter of acknowledgment to appellant.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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. 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 (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:
November 17, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations