Angelia D. Hunter, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 6, 1999
05971067 (E.E.O.C. May. 6, 1999)

05971067

05-06-1999

Angelia D. Hunter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Angelia D. Hunter v. United States Postal Service

05971067

May 6, 1999

Angelia D. Hunter, )

Appellant, )

) Request No. 05971067

v. ) Appeal No. 01970255

) Agency No. 1C-174-0100-96

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

__________________________________)

GRANTING OF REQUEST FOR RECONSIDERATION

On September 16, 1997, the United States Postal Service (hereinafter

referred to as the agency) timely initiated a request to the Equal

Employment Opportunity Commission (the Commission) to reconsider

the decision in Angela D. Hunter v. Marvin T. Runyon, Jr., Postmaster

General, United States Postal Service, EEOC Appeal No. 01970255 (August

14, 1997), received on August 18, 1997. EEOC regulations provide that

the Commissioners may, in their discretion, reconsider any previous

Commission decision. 29 C.F.R. �1614.407(a). The party requesting

reconsideration must submit written argument or evidence which tends to

establish one or more of the following three criteria: new and material

evidence is available that was not readily available when the previous

decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision

involved an erroneous interpretation of law, regulation, or material fact,

or a misapplication of established policy, 29 C.F.R. �1614.407(c)(2);

and the decision is of such exceptional nature as to have substantial

precedential implications, 29 C.F.R. �1614.407(c)(3). For the reasons

that follow, the agency's request is GRANTED.

ISSUE PRESENTED

Whether the previous decision correctly determined that the agency

improperly dismissed appellant's complaint on the grounds that she filed

her formal complaint in an untimely manner.

BACKGROUND

The record indicates that on June 24, 1996, the appellant, an applicant

for employment, contacted an EEO counselor alleging discrimination based

on physical disability (perceived, manic depressive disorder) when she

was not hired as a Transitional Employee. Unable to resolve the matter,

the agency mailed appellant a letter dated July 19, 1996, informing her

of the right to file a formal complaint (notice). The certified mail

return receipt (PS Form 3811)that accompanied the notice did not indicate

the date of receipt by appellant. The agency, however, noted that it

received the PS Form 3811, bearing appellant's signature, on July 24,

1996. Therefore, the agency concluded that the notice had to have been

received by appellant no later than July 23, 1996. In an envelope bearing

the postmark of August 16, 1996, appellant filed her formal complaint.

She also enclosed a copy of the notice, which she dated August 8, 1996.

The agency dismissed appellant's complaint on the grounds that it was

filed in an untimely manner. On appeal, appellant, through her attorney,

R-1, argued that:

[a]t the time that she received the EEO complaint of discrimination forms,

the claimant was not represented and did not have the benefit of legal

counsel.

R-1 also argued that:

[t]he letter received from the Postal Service setting forth the

requirements for filing a formal complaint did not clearly set out the

time requirements for filing, nor did it inform the claimant of the

consequences of not filing her EEO complaint of discrimination within

the fifteen (15) day time limit.

The previous decision reversed the agency's dismissal of appellant's

complaint. Apparently, the previous decision's determination was based

on the fact that although the EEO counselor's report listed R-1 as

appellant's representative, and provided R-1's name, address and phone

number, there was no evidence that the agency served R-1 with a copy of

the notice.

In its request to reconsider (RTR), the agency argued that the previous

decision erred in finding that appellant was represented by an attorney at

the time the notice was issued. According to the agency, "[t]he record

is clear that appellant did not name the attorney as her representative

until the August 16, 1996, filing of her formal complaint in this matter."

The agency also noted R-1's statement that appellant was not represented

by an attorney at the time she received the notice.

Appellant opposed the agency's RTR. R-1, emphasizing the fact that

appellant was not represented by an attorney, argued that the documents

sent by the agency did not inform her of the consequences of not filing

her formal complaint within 15-days.

ANALYSIS AND FINDINGS

The Commission finds that the agency's RTR meets the criterion of 29

C.F.R. �1614.407(c)(2). It is therefore the decision of the Commission

to grant the agency's request. According to EEOC Regulation 29

C.F.R. �1614.105(c), "[w]hen advised that a complaint has been filed

by an aggrieved person, the counselor shall submit a written report

within 15-days to the agency office that has been designated to accept

complaints and the aggrieved person concerning the issues discussed

and action taken during counseling." There is no dispute that at the

time the formal complaint was filed, R-1 was representing appellant.

Since the EEO counselor's report was prepared after appellant's complaint

was filed, not before, the previous decision, to the extent it relied

on the report to establish the agency's knowledge of R-1, erred.

Furthermore, R-1 indicated, both on appeal and in her brief opposing

the agency's RTR, that appellant, when she received the notice, was not

represented by an attorney. Therefore, we find that the agency properly

served the notice upon appellant. Since appellant's complaint was not

received until August 16, 1996, we find that it was filed in an untimely

manner, and was properly dismissed.<1>

Contrary to R-1's assertions concerning the notice, the document

specifically informed appellant that: 1) she had the right to file a

formal complaint within 15-calendar days of the date the notice was

received; and 2) the complaint would be deemed timely filed if it were

delivered in person or postmarked before the expiration of the 15-calendar

day filing period. Therefore, we find it reasonable to conclude that

appellant was on notice that her right to file a complaint was contingent

upon it being filed in a timely manner.

CONCLUSION

After a review of the agency's request to reconsider, appellant's

response, the previous decision, and the entire record, the Commission

finds that the request meets the criterion of 29 C.F.R. �1614.407(c)(2).

It is therefore the decision of the Commission to GRANT the request.

The decision in EEOC Appeal No. 01970255 (August 14, 1997) is hereby

REVERSED. The agency's final decision is AFFIRMED. There is no further

right of administrative appeal on a decision of the Commission on a

Request to Reconsider.

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

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. 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 (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:

May 6, 1999

Date Frances M. Hart

Executive Officer

Executive Secretariat

1The record contains a document entitled "Information for Precomplaint

Counseling," which was dated July 4, 1996, and received by the agency

on July 19, 1996. Appellant, in the document, indicated that she

was represented by R-1. The Commission will not speculate as to why

appellant listed R-1 as her representative on July 4, 1996 when R-1, on

two separate occasions, informed the Commission that appellant did not

have an attorney when the notice was received on or about July 23, 1996.