01993812
11-08-1999
Joanne Sullivan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joanne Sullivan, )
Appellant, )
)
v. ) Appeal No. 01993812 ) Agency No. 1B-012-0001-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 5, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received on March 6, 1999, pertaining
to a 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. The Commission accepts appellant's appeal in accordance with
EEOC No. 960, as amended.
In her complaint, appellant alleges that she has been the victim of
unlawful employment discrimination in the form of 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 EEO Regulation 29
C.F.R. �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. Subsequently, appellant appealed
the agency's dismissal to this office, asserting in her defense, that
the individual who signed for the demand letter was not the appellant or
her two daughters whom were the only two other occupants of her household
on the day the Demand Letter was delivered. In response, this office
issued a decision vacating the agency's final decision and remanding
the case for further processing in accordance to the following order.
The agency is ORDERED to take the following actions:
a. 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 the Demand letter at her address
was not a family member or a member of her household of suitable age
and discretion. Appellant shall have fifteen (15) calendar days to
respond to the agency.
b. 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.
c. Within sixty (60) calendar days of the date of this decision becomes
final, the agency shall issue a notice of processing and/or a new FAD
regarding appellant's complaint.
In accordance with the aforementioned order, the agency sent to
appellant a letter dated January 14, 1999, requesting appellant to
demonstrate that the individual who signed for the above referenced
Demand Letter was not a family member or a member of the household of
suitable age and discretion. In response, by letter dated February 1,
1999, appellant submitted an affidavit stating, amongst other things,
that the only people whom reside at her address, are herself and her
two daughters and the signature was neither her's nor her daughters'.
Dissatisfied with appellant's response, the agency issued a second
request for information dated February 5, 1999. Specifically, the letter
requested the following:
1. Because your February 1, 1999 response failed to identify
the person who signed for the Letter of Demand dated July 2, 1997,
signed for at your address of record on July 3, 1997 via certified return
receipt mail, please identify this person (a copy of the return receipt
is enclosed);
2. Please state when you actually took receipt of the Letter
of Demand dated July 2, 1997, and under what circumstances;
3. When you reasonably suspected discrimination after taking receipt
of the Letter of Demand.
Appellant, in response to the agency's second request for information,
submitted a letter dated February 21, 1999. Within this letter appellant
reiterates her statement that the signature on the return receipt dated
July 3, 1997 is not hers nor that of her daughters. Furthermore,
appellant states that she never received the Demand Letter dated July
2, 1997.
As a result of the above investigation, the agency issued its final
decision dated March 5, 1999, dismissing appellant's complaint.
The agency found that appellant failed to provide the identity of the
individual who signed for the Demand Letter, when she received the
demand letter and the circumstances in which she took receipt of the
Demand Letter. Therefore, the agency did not extend the time period in
which one must contact an EEO Counselor and thus dismissed the complaint
for initiating untimely contact with an EEO Counselor.
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 Howard v. Department of the Navy, EEOC Request
No. 05970852 (February 11, 1999). 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.
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.
Furthermore, 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 has failed to rebut the presumption of constructive
receipt. Specifically, appellant, during the investigation and on
appeal, has failed to demonstrate that the individual who signed for
the Demand Letter was not a family member. As the record reflects,
appellant consistently avoided addressing the identity of the individual
who signed for the letter. Therefore, not proving that they were not a
family member. Moreover, throughout the investigation, appellant offered
no new information other than by letter dated February 21, 1999 in which
she claimed to have never received the Demand Letter. However, in support
of her appeal, appellant now offers the explanation that she found out
about the letter through a Union steward. Interestingly, appellant never
offered this information to the agency, and even now, she offers no name,
therefore making her assertion incapable of being confirmed. Appellant,
in failing to provide the agency this crucial information during the
investigation, has thwarted their efforts in unraveling the truth.
Thereby, discrediting her veracity and thus causing her statements on
appeal to be incredulous. For the foregoing reasons, we find
that appellant has failed to rebut the presumption of constructive
receipt. Accordingly, the agency's final decision dismissing appellant's
complaint on the ground of failing to timely contact an EEO Counselor
was proper and is AFFIRMED.
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. 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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations