01981555
01-21-1999
Fannie Louise Holden, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Fannie Louise Holden v. Department of Veterans Affairs
01981555
January 21, 1999
Fannie Louise Holden, )
Appellant, )
)
)
v. ) Appeal No. 01981555
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The final agency
decision was dated November 28, 1997. The appeal was postmarked December
12, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint.
BACKGROUND
The record indicates that on February 22, 1995, appellant contacted
an EEO Counselor alleging that: a) she was reassigned to Engineering
Service in November 1994; b) she was denied training after the subject
reassignment; c) her coworker made a derogatory comment concerning her
blood pressure; d) she was denied Leave Without Pay; and e) she received
an informal Letter of Counseling on February 9, 1995. Unable to resolve
the matters informally, the agency sent a notice of final interview via
certified mail to appellant's address of record. Therein, appellant was
informed that she must file a formal complaint within 15 calendar days of
her receipt of that notice, otherwise her complaint would be dismissed.
The certified return receipt was signed by an individual other than
appellant on March 7, 1995.
The record contains a signed statement by the EEO Counselor indicating
that on March 13, 1995, appellant telephoned her asking for an
EEO Counselor's Report, which she could not provide at that time.
During their conversation, the Counselor was informed that appellant
received a formal complaint form, VA Form 4939, which was previously sent
to appellant along with the notice of final interview. The Counselor
stated that she informed appellant of the 15-day time limitation to file
a formal complaint.
The record indicates that in September/October 1996, appellant made
inquiries about the status of her complaint. When the agency informed
appellant that its records indicated that although she received the notice
of final interview on March 7, 1995, her formal complaint was never filed,
she filed a formal complaint by letter dated February 24, 1997, which
was received by the agency on March 3, 1997. The agency, rather than
investigating the complaint, then, referred the matter for counseling.
Thereafter, appellant filed a formal complaint dated April 21, 1997,
amending her prior February 24, 1997 complaint. Therein, appellant
included additional allegations indicating that: f) she was denied a
promotion to two positions in August 1994; g) she was denied the $25,000
buyout in March 1995; h) her position was abolished on March 28, 1995;
i) she was reassigned to VA Medical Center, West Los Angeles on May 1,
1995; and j) she was forced to resign from her position at the agency
on October 1, 1995.
On November 28, 1997, the agency issued a final decision dismissing the
complaint due to untimely filing. The agency stated that although
appellant, through someone at her address of record, received a
notice of final interview on March 7, 1995, she did not file a formal
complaint until March 3, 1997, which was beyond the requisite time limit.
Furthermore, with regard to allegations f, g, h, i, and j, the agency
indicated that allegations of discrimination must be brought to the
attention of an EEO Counselor within 45 calendar days of the date of
occurrence.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106 requires the filing of a complaint
with the agency that allegedly discriminated against the complainant
within fifteen (15) calendar days after the date of receipt of the notice
of final interview.
With regard to allegations a through e in appellant's complaint, the
record indicates that a notice of final interview was received by an
individual at appellant's address of record on March 7, 1995. In the
notice, appellant was clearly informed that she must file a formal
complaint within 15 calendar days of its receipt. Appellant did not
file her formal complaint until February 24, 1997, which was beyond the
15-day time limit.
The Commission previously has held that receipt of a document at a
complainant's correct address by a member of the complainant's household
or family of suitable age and discretion constitutes constructive
receipt by complainant. See, e.g., Baunchand v. United States Postal
Service, EEOC Request No. 05920389 (May 29, 1992). When a certified
U.S. Postal return receipt has been signed by an unidentified individual
at the complainant's address on a date certain to indicate delivery
of an important document, the Commission has effectively relied on the
certified receipt to establish a presumption of constructive receipt of
the document by complainant on that date. See, e.g., Pazinick v. United
States Postal Service, EEOC Request No. 05930337 (September 10, 1993).
The presumption, however, is rebuttable.
However, the Commission has further held that equity demands that a
complainant be provided with adequate notice when the presumption of
constructive receipt is relied on in a dismissal for untimeliness to
provide her with a full and fair opportunity to rebut it. See generally
Fontanella v. United States Postal Service, EEOC Request No. 05940131
(April 10, 1995).
On appeal, appellant proffers no evidence that the individual who received
the notice of final interview on March 7, 1995, was someone other than
a family member. See Fisher v. USPS, EEOC Request No. 05900389 (May
3, 1990). Thus, appellant has presented no persuasive arguments or
evidence to warrant an extension of the applicable time limit.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
With regard to allegations f through j, the Commission finds that the
subject allegations are properly dismissed due to untimely EEO Counselor
contact. The record indicates that the alleged incidents occurred
from August 1994, to October 1, 1995, but appellant did not contact
an EEO Counselor until February 24, 1997, which was beyond the 45-day
time limit set by the regulations. On appeal, appellant has presented
no persuasive arguments or evidence to show that she contacted an EEO
Counselor with regard to the subject allegations in a timely manner
pursuant to 29 C.F.R. �1614.105(a)(1).
CONCLUSION
The agency's decision to dismiss appellant's complaint is AFFIRMED for
the reasons set forth herein.
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 (S0993)
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. If you file a request to reconsider and also file a
civil action, 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:
Jan. 21, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations