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

Equal Employment Opportunity CommissionNov 8, 1999
01993812 (E.E.O.C. Nov. 8, 1999)

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