Joanne Sullivan, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 11, 1999
01981472 (E.E.O.C. Jan. 11, 1999)

01981472

01-11-1999

Joanne Sullivan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joanne Sullivan v. United States Postal Service

01981472

January 11, 1999

Joanne Sullivan, )

Appellant, )

)

)

v. ) Appeal No. 01981472

) Agency No. 1B-012-0001-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On December 9, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated November 19, 1997, pertaining

to 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. In her complaint, appellant alleged that she was subjected to

discrimination in reprisal for prior EEO activity when on June 25, 1997,

she was issued a Letter of Demand - Indebtedness (Demand letter), due to

an administrative error in the payment of a prior grievance settlement

award.

The agency dismissed appellant's complaint pursuant to EEOC Regulation 29

U.S.C. �1614.107(b), for untimely EEO Counselor contact. Specifically,

the agency determined that, based on the certified mail return-receipt,

appellant received the Demand letter on July 3, 1997, but did not

initiate contact with an EEO Counselor until September 5, 1997, beyond

the forty-five (45) day limitation period.

On appeal, appellant contends that appellant did not receive the Demand

letter on the date indicated by the agency in its FAD, and that the

individual whose signature is on the certified mail return-receipt is

not the signature of anyone who lives at appellant's address of record.

In response, the agency offers several new justifications for dismissal of

appellant's complaint. Specifically, the agency argues that appellant's

complaint amounts to a collateral attack on the grievance process because

the Demand letter identified overpayment of funds provided appellant as a

result of an arbitrator's award. As a result, the agency contends that

appellant's complaint fails to state a claim. Additionally, the agency

asserts that because appellant filed another EEO complaint (identified as

Agency No. 1B-012-1053-96) concerning the actions which resulted in the

arbitrator's award, and, subsequently, the Demand letter, appellant's

complaint should be dismissed pursuant to 29 C.F.R. �1614.107(a), for

stating the same claim that was pending before or decided by the agency

or Commission.

As a preliminary matter, the Commission finds no merit to the agency's

alternate justifications for dismissal offered for the first time

on appeal. We find that the connection between the instant complaint,

the arbitrator's award, and the prior complaint are too attenuated to

draw the conclusion that appellant's complaint represents a collateral

attack on the grievance process or that it states the same claim as

1B-012-1053-96.

EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of

discrimination should be brought to the attention of the Equal Employment

Opportunity Counselor within forty-five (45) days of the date of the

matter alleged to be discriminatory or, in the case of a personnel

action, within forty-five (45) days of the effective date of the action.

The Commission has adopted a "reasonable suspicion" standard (as opposed

to a "supportive facts" standard) to determine when the forty-five (45)

day limitation period is triggered. See Ball v. USPS, EEOC Request

No. 05880247 (July 6, 1988). Thus, the time limitation is not triggered

until a complainant reasonably suspects discrimination, but before all

the facts that support a charge of discrimination have become apparent.

We have consistently held that the agency bears the burden of

obtaining sufficient information to support a reasoned determination

as to timeliness. See Williams v. Department of Defense, EEOC Request

No. 05920506 (August 25, 1992); Gens v. Department of Defense, EEOC

Request No. 05910837 (January 31, 1992). In the instant case, we find

that the agency failed to meet this burden. The agency concluded

that appellant had, or should have had, a reasonable suspicion of

discrimination on July 3, 1997, the date on which the certified mail

return receipt showed that the Demand letter was received at appellant's

address of record. As appellant's September 5, 1997 initial EEO

Counselor contact occurred more than forty-five (45) days from the

date the Demand letter was received at appellant's address of record,

the agency determined that it was untimely; however, the certified mail

return receipt bears the signature of someone other than appellant,

who, on appeal, appellant contends is not a member of her household.

Further, appellant asserts that she did not receive the Demand letter

on the date indicated by the certified mail return receipt.

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 contends that the individual who signed for receipt

of the Demand letter was not anyone who lived at appellant's address

of record. Appellant's assertions, therefore, raise the question

of whether the individual who signed for the certified package was a

member of her household or family and of suitable age and discretion.

Further, appellant was not provided with a full opportunity to rebut

the presumption of constructive receipt. Under the circumstances, the

Commission finds that the agency failed to establish that appellant

received the Demand letter on July 3, 1997. We note, however, that

appellant provided no information pertaining to when she actually

took receipt of the Demand letter, and, therefore, we find that

there is insufficient information in the record to make a timeliness

determination.

Accordingly, the agency's decision to dismiss appellant's complaint is

hereby VACATED. The complaint is REMANDED to the agency for further

processing in accordance with this decision and the Order below.

ORDER

The agency is ORDERED to take the following actions:

Within fifteen (15) calendar days of the date this decision becomes

final, the agency shall provide appellant the opportunity to demonstrate

that the individual who signed for her Demand letter at her address

was not a family member or member of her household of suitable age and

discretion. Appellant shall have fifteen (15) calendar days to respond

to the agency.

If appellant so demonstrates, the agency shall conduct a supplemental

investigation to determine when appellant reasonably suspected

discrimination, i.e., when she actually took receipt of the Demand

letter.

Within sixty (60) calendar days of the date this decision becomes final,

the agency shall issue a notice of processing and/or a new FAD regarding

appellant's complaint.

A copy of the agency's notice of processing and/or new FAD must be sent

to the Compliance Officer as referenced below.

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:

Jan. 11, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations