05A20547_r
06-18-2002
Elizabeth Matthews-El, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth Matthews-El v. United States Postal Service
05A20547
June 18, 2002
.
Elizabeth Matthews-El,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A20547
Appeal No. 01A20038
Agency No. 1F-903-0013-01
DENIAL OF REQUEST FOR RECONSIDERATION
The agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Elizabeth
Matthews-El v. United States Postal Service, EEOC Appeal No. 01A20038
(February 14, 2002). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The issue presented by the instant request is whether complainant
filed her formal complaint of discrimination within the appropriate
limitation period. A complainant has the right to file a formal complaint
within 15 calendar days of the date that the notice of right to file
is received. See 29 C.F.R. �� 1614.105(d), 106(b). A regulatory time
limit may run where due diligence is used to deliver appropriate rights
to a complainant, but the effort is unsuccessful. See Kaiser v. United
States Postal Service, EEOC Request No. 05980414 (June 22, 2000) (citing
Woehr v. United States Postal Service, EEOC Request No. 05960657 (July
3, 1997)).
In its prior decision on appeal, the Commission found that complainant
filed her formal complaint within 15 calendar days of receipt of the
notice of right to file. In that decision, the Commission concluded that
complainant had received the notice on August 28, 2001, and timely filed
her formal complaint on that same day. The Commission now recognizes,
by complainant's admission, that she received the notice of right to
file on August 14, 2001, rather than on August 28, 2001; however, this
fact does not materially affect the outcome of the Commission's decision
on appeal. Complainant filed her formal complaint on August 28, 2001,
within 15 days of receipt of the notice of right to file, assuming that
the notice was received on August 14, 2001.
In the agency's request for reconsideration the agency maintains that
a letter carrier servicing complainant's route delivered the notice of
right to file a formal complaint to complainant's address on June 14,
2001, as evidenced by the Carrier Certification of Delivery contained
in the record. The Commission notes that although the letter carrier
certified the delivery, there is no signature either by complainant or
another individual indicating receipt of this document on that date.
In her prior appeal of the agency's final decision and in response to
the agency's request for reconsideration, complainant denies that she
received the notice of right to file on June 14, 2001.
We contrast the instant case with Woehr v. United States Postal Service,
EEOC Request No. 05960657 (July 3, 1997), in which the Commission found
that it acted with due diligence to provide 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 period of time.
See Kaiser v. United States Postal Service, EEOC Request No. 05980414
(June 22, 2000). There is no evidence in this record that the agency
tried to notify complainant of her right to file a formal complaint
on different occasions after the alleged delivery on June 14, 2001,
or through other means, including sending the notice via regular mail.
The Commission determines that under the circumstances, the agency did
not act with due diligence in order to deliver the appropriate rights
to complainant.
We find that in the instant case, carrier certified delivery is
insufficient to prove receipt of the notice of right to file. Actual
receipt of a document is generally necessary to begin the running of
a regulatory time limit. See Woehr v. United States Postal Service,
EEOC Request No. 05960657 (July 3, 1997). Since the carrier certified
delivery did not prove receipt, we conclude that the 15 day limitation
period did not start to run on June 14, 2001 as advanced by the agency;
rather, the limitation period began to run on August 14, 2001.
After a review of the agency's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A20038 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 18, 2002
__________________
Date