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