Wayne Waites, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.

Equal Employment Opportunity CommissionMar 8, 2000
05a00077 (E.E.O.C. Mar. 8, 2000)

05a00077

03-08-2000

Wayne Waites, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Areas), Agency.


Wayne Waites v. United States Postal Service

05A00077

March 8, 2000

Wayne Waites, )

Complainant, )

) Request No. 05A00077

v. ) Appeal No. 01994667

) Agency No. 4D-280-0063-99

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(Allegheny/Mid-Atlantic Areas), )

Agency. )

)

DENIAL OF REQUEST FOR RECONSIDERATION

On 10/17/99, Wayne Waites (complainant)initiated a request to the Equal

Employment Opportunity Commission (Commission) to reconsider the decision

in Wayne Waites v. United States Postal Service, EEOC Appeal No. 01994667

(9/15/99).<1> EEOC Regulations provide that the Commissioners may,

in their discretion, reconsider any previous Commission decision.

64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.405(b)). The party requesting

reconsideration must submit written argument or evidence which tends

to establish one or more of the following two criteria: the appellate

decision involved a clearly erroneous interpretation of material fact

or law; or the decision will have a substantial impact on the policies,

practices or operations of the agency. Complainant's request is denied.

The record reveals complainant contacted an EEO counselor on November

27, 1998, alleging he was discriminated against on the bases of race

(Black), color (Black), sex (male), and physical disability (30% disabled

veteran), when on October 26, 1998, he was relocated from Fayetteville

North Carolina to Charlotte, North Carolina. The record reveals that

an individual with a different last name than complainant signed for the

Notice of Right to File a Formal Complaint on March 24, 1999. The Notice

of Right to File a Formal Complaint itself was signed by complainant

on March 27, 1999. Complainant filed his formal EEO complaint by hand,

on April 14, 1994.

On April 22, 1999, the agency issued a final decision dismissing the

complainant for failure to file his formal complaint within fifteen

days from his receipt of his Notice of Right to File. The agency found

that complainant was notified of his right to file a formal complaint

on March 24, 1999, but failed to file until twenty-one days later,

on April 14, 1999. Complainant appealed the agency's final decision.

In our prior decision, we found complainant failed to present persuasive

arguments or evidence that would warrant an extension of the time limit

for filing a complaint. This request for reconsideration followed.

In his request, the complainant argues that he was in Charlotte, North

Carolina when the mail was delivered to his address is Fayetteville,

North Carolina on March 24, 1999. He supplied a statement from his 80

year old mother-in-law who reports that she was checking on the house when

the certified mail arrived. She states that she signed for the mail, but

did not deliver it to complainant until one or two weeks after it arrived.

As reason, she states that complainant was in Charlotte during the week,

and returned to Fayetteville on the weekends. She reports she gave it to

complainant on either April 3 or April 10, 1999. Complainant argues that

the time limit should run from the time he actually received the letter.

He alleges that his EEO counselor led him to believe his complaint would

be deemed timely filed.

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.

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 him

with a full and fair opportunity to rebut it. See generally Fontanella

v. United States Postal Service, EEOC Request No. 05940131 (April 10,

1995). In this case, the agency failed to provide complainant with

notice that it relied on the presumption of constructive notice when it

dismissed complainant's appeal. Complainant, however, provided argument

on appeal in rebuttal to this presumption.

We find complainant failed to present adequate justification as to why

the time limits should be extended in this case. Complainant failed to

explain why his Notice of Right to File a Formal Complaint was signed on

March 27, 1999, if he did not receive the mail until April 3rd or 10th as

he claims. Also, despite his allegations that his mother-in-law misplaces

mail on occasion, he failed to prove that she was so incapacitated

that she could not have notified him that important mail had arrived.

See Weinberger v. Department of the Army, EEOC Request No. 05920040

(February 21, 1992). If complainant received the mail on April 3rd,

as he states was a possibility, he failed to explain why he could not

meet the deadline of April 8, 1999. The record reveals complainant was

advised of the procedures for filing an EEO complaint, and should have

been expecting the mail at his home.

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds complainant's

request does not meet the criteria of 29 C.F.R. � 1614.405(b), and it is

the decision of the Commission to deny appellant's request. The decision

of the Commission in EEOC Appeal No. 01994667 remains the Commission's

final decision. There is no further right of administrative appeal from

a decision of the Commission on a request for reconsideration.

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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,

March 8, 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:

_________________________ _________________________

DATE Equal Employment Assistant

1On 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.