Fannie Louise Holden, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJan 21, 1999
01981555 (E.E.O.C. Jan. 21, 1999)

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