01991850
11-30-2000
Gail M. McGraw, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gail M. McGraw v. United States Postal Service
01991850
November 30, 2000
.
Gail M. McGraw,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01991850
Agency No. 1-G-701-0084-98
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint.<1>
The record discloses that the notice of right to file a formal complaint
was received at complainant's address on September 1, 1998. Although
the notice indicated that complainant had to file a formal complaint
within fifteen (15) calendar days of its receipt, complainant did not
file her formal complaint until September 23, 1998, which is beyond the
limitation period.
On appeal, complainant claims that she did not receive the notice
of final interview and that it was received by her 92-year-old
great-grandmother who has Alzheimer's Disease. She further claims that she
is not responsible for a letter she did acknowledge as having received.
It is well settled that receipt of a document at a complainant's correct
address by a member of complainant's family or household of suitable age
and discretion constitutes constructive receipt by the complainant. See
Baunchand v. USPS , EEOC Request No. 05920389 (May 29, 1992). Here,
complainant contends that her great-grandmother who has Alzheimer's
Disease, received the notice and was not a person of suitable
discretion. Complainant further contends that her great-grandmother's
receipt of the notice does not constitute her constructive receipt. The
Commission disagrees.
In order for complainant to rebut a finding that her great-grandmother,
an adult member of her household, is not a person of suitable discretion
based on a medical condition, complainant must provide evidence
that her great-grandmother is so incapacitated that her condition
prevented complainant from receiving the notice in a timely fashion.
See Valentine v. USPS, EEOC Appeal No. 01962416 (April 11, 1997). In
this case, complainant did not produce any such evidence. Accordingly
the Commission finds that complainant's great-grandmother's receipt of
the notice of the final interview constitutes complainant's constructive
receipt. Complainant thereafter failed to file her complainant within
fifteen days of her receipt of the notice. Accordingly, the agency's
decision to dismiss complainant's complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.