01974517
01-12-2000
Stacey Brooks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific/Western Areas), Agency.
Stacey Brooks, )
Complainant, )
) Appeal No. 01974517
v. ) Agency No. 1F-924-1030-96
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Pacific/Western Areas), )
Agency. )
)
DECISION
INTRODUCTION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination on the
bases of race (Black), sex (female), and reprisal (prior EEO activity),
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq. Complainant alleges she was discriminated
against when on June 21, 1996, her appointment as a Transitional Clerk
was terminated and she was changed to a Casual employee. The appeal is
accepted in accordance with EEOC Order No. 960.001. For the following
reasons, the agency's decision is VACATED AND REMANDED.
The record reveals that during the relevant time, complainant was employed
as a Transitional Clerk, at the agency's San Bernardino, California
facility. Believing she was a victim of discrimination, complainant
sought EEO counseling and, subsequently filed a complaint on August 28,
1996, alleging she was discriminated against as referenced above.
On April 4, 1997, the agency issued a final decision which found
no discrimination. Therein, the agency stated that a copy of
the investigative file and a letter outlining complainant's appeal
rights was sent to complainant on February 2, 1997, and received at her
address of record. The agency stated that the letter clearly set forth a
specific thirty (30) day time period for exercising the right to request
a hearing or a decision without a hearing. In its decision, the agency
found that complainant elected not to exercise either of these options,
and the time limits for doing so expired. Therefore, the agency issued
its final decision.
CONTENTIONS ON APPEAL
On appeal, complainant's non-attorney representative requests a hearing on
behalf of complainant. She argues that on February 5, 1997, she received
a copy of the cover letter to complainant's Report of Investigation (ROI).
However, when she examined the letter, she noticed that complainant's
address, as listed on the letter, was not complainant's current address;
in fact, nor was it complainant's correct prior address. Specifically,
she states that the address listed on the letter contained complainant's
prior address with an incorrect apartment number.<1> According to the
representative, once she discovered the error, she became concerned and
contacted complainant in order to determine if she had received the ROI.
After learning that she had not received her hearing rights or ROI,
the representative and complainant contacted the post office in order to
locate the package by its certified number. They were unable to do so.
In order to rectify the problem, the representative reports that on
February 13, 1997, she spoke with an individual at the agency about the
situation, since complainant had still not received the ROI. On that day,
she informed the EEO office that the address listed on the letter was
not complainant's current address, nor was it the correct prior address.
She then informed the agency of complainant's updated address. The agency
then assured her that if the file was returned, it would be redelivered
to complainant's new address.
On March 23, 1997, the representative faxed a letter to the agency's
EEO office notifying them that complainant still had not received the
ROI, and requested that the agency send a new copy to complainant's
current address. According to the representative's statement on appeal,
her intention was to wait fifteen days after March 23, 1997, in order to
allow the agency to respond to the fax request. Thereafter, complainant
would request a hearing, since by March 28, 1997, it would have been more
then 180 days since the time complainant filed her formal complaint.
However, on April 5, 1997, the representative received the agency's
final decision.
After reading the decision, the representative checked with complainant,
who reported that she never signed for the investigative file, as the
agency had maintained in its decision. The representative then contacted
the agency's EEO office, which told her that they had only been notified
of complainant's change of address on February 13, 1997. Therefore,
they maintained they were not responsible if the complainant had not
timely informed the agency of a change of address. According to the
representative, the agency claimed to possess a signed return receipt
indicating complainant received the ROI, but refused to produce it when
the representative requested.
Complainant's representative claims that neither she, nor complainant,
has ever received a copy of the ROI, and requests a hearing before an
EEOC Administrative Judge. In the alternative, complainant argues the
merits of her complaint.
In response to complainant's appeal, the agency maintains that,
�complainant received her appeal rights, along with a copy of the
investigative file, at her address of record on February 11, 1997.
The complainant did not elect to exercise any of the options outlined
in the appeal letter.� The agency did not provide any evidence, such
as a return receipt, indicating that complainant, or any member of her
household, received the ROI or hearing rights.
ANALYSIS AND FINDINGS
At the time of the investigation, EEOC Regulation 29 C.F.R. �1614.108 (f)
provided, in relevant part, that the agency shall notify a complainant
that the formal investigation of her complaint has been completed,
shall provide the complainant with a copy of the investigative file.
It further provided that the agency should notify the complainant that,
within 30 days of receipt of the investigative file, the complainant
has the right to request a hearing before an administrative judge or
may receive an immediate final decision pursuant to then �1614.110.<2>
Upon review of the record, we find that the agency had been mailing
correspondence to complainant with an incorrect apartment number
throughout the EEO complaint process. As evidence of this, the record
contains a letter sent by her representative to the agency dated October
22, 1996, informing the agency that complainant's EEO information
was being sent to the wrong apartment number. In that letter, the
representative notified the agency of complainant's correct apartment
number. It does not appear, however, that the problem was corrected.
To further complicate matters, it appears that some time between
October 1996 and February 5, 1997, complainant moved her residence.
Although complainant's representative argues that complainant mailed a
change of address form in the mail, she has not produced any evidence
that she informed the agency of her address change. Although it is
complainant's burden to keep the agency apprized of address changes,
we are not persuaded that her failure to do so was the sole cause for
her failure to receive the hearing rights and ROI.
To begin with, we note that actual receipt of a document is generally
necessary to commence the running of a regulatory time limit. See
Woehr v. United States Postal Service, EEOC Request No. 05960657
(July 3, 1997). A regulatory time limit may run where due diligence is
used to deliver appropriate rights to a complainant, but the effort is
unsuccessful. Id. In the Woehr case the Commission found that it had acted
with due diligence to provide an complainant with a copy of an appeal
decision by mailing it to the complainant twice, which resulted in six
attempts to deliver the decision over a two-month time span. Therefore,
the Commission found the complainant's request for reconsideration to be
untimely even though the previous decision was ultimately returned to the
Commission by the Postal Service as unclaimed. In reaching this result,
the Commission distinguished the decisions reached in two prior cases,
Hoffman v. United States Postal Service, EEOC Request No. 05950172 (May
23, 1996), and Kellus v. United States Postal Service, EEOC Request
No. 05920198 (April 20, 1992). In both of those cases, where actual
receipt was required, the agency sent the notice of rights only one time.
Here, we find that the agency has failed to show that complainant actually
received her hearing rights or ROI on February 11, 1997, as it claims in
its final decision. Furthermore, we do not find that the agency used
due diligence when it mailed the ROI and hearing rights. The evidence
reveals that the agency sent only one notice to complainant and then did
nothing more, even when it became aware that there was a problem with
complainant's address. The agency did not attempt to send the notice or
ROI a second time, as the Commission did in the Woehr case, nor did the
agency attempt to deliver the notice or ROI at complainant's worksite,
even when it was on notice that complainant had not received the ROI or
appeal rights.<3>
Rather, the agency failed to respond to complainant's representative's
repeated complaints, and proceeded to issue a final decision. Given this,
as well as a lack of evidence presented by the agency showing that
complainant received the ROI, we find that the case should be remanded
for a hearing.
Accordingly, we find complainant timely requested a hearing in her brief
on appeal filed on May 8, 1997, which was over 180 days from the day
complainant filed the instant complaint. See, 64 Fed. Reg. 37, 644,
37, 657(1999)(to be codified and hereinafter referred to as 29 C.F.R. �
1614.108(g )).
CONCLUSION
Therefore, after a careful review of the record, it is the decision of
the Commission to VACATE the agency's final decision and REMAND this
matter for further processing in accordance with this decision and the
ORDER set forth below.
ORDER
The PARTIES are ORDERED to take the following actions:
Within thirty (30) days from the date this decision becomes final, the
agency shall provide complainant with a copy of the investigative file.
Since complainant has not yet received the investigative file, and
180 days has elapsed since she filed her complaint, within thirty (30)
days from the date this decision becomes final, complainant may submit a
written request for the appointment of an administrative judge directly
to the EEOC Los Angeles District Office, 255 Temple Street, 4th Floor,
Los Angeles, California 90012. Complainant is advised to submit a
copy of this decision with her submission to the EEOC District Office.
The complainant shall send a copy of the request for a hearing to the
agency EEO office. Within fifteen (15) days of receipt of the request
for a hearing, the agency shall provide a copy of the complaint file to
the EEOC, and if not previously provided, to the complainant. See, 64
Fed. Reg. 37, 644, 37, 657(1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.108(g )).
If complainant no longer desires a hearing, she may request a final
decision from the agency within thirty (30) days from the date this
decision becomes final. If complainant requests a final decision, the
agency shall issue the final decision within sixty (60) days from the
date the agency receives complainant's request. See, 64 Fed. Reg. 37,
644, 37, 657 (1999)(to be codified and hereinafter referred to as 29
C.F.R. � 1614.110(b)).
A copy of the agency's letter providing complainant with a copy of
the investigative file must be submitted to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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
complainant. If the agency does not comply with the Commission's order,
the complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). The complainant 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �� 1614.407, 1614.408), and 29 C.F.R. �
1614.503(g). Alternatively, the complainant 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. �� 1614.407
and 1614.408. 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 complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
January 12, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
__________________________ 1According to the record, documentation sent
to complainant's old address was sent to �Apt. 51" instead of �Apt. 5/I�.
2On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
3In addition, although the agency mailed a copy of the hearing rights
to complainant's representative, the Commission has previously held that
receipt of a document by a non-attorney representative is not sufficient
to establish constructive notice on the part of a complainant. See
Scroggins v. USPS, EEOC Request No. 05901153 (June 18, 1991). While
that case concerned the receipt of a final agency decision, we find the
rationale therein to be equally applicable to this case.