05960773
10-08-1998
Vassiliki K. Fuller, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service,) Agency.
Vassiliki K. Fuller v. United States Postal Service
05960773
October 8, 1998
Vassiliki K. Fuller, )
Appellant, )
)
v. ) Request No. 05960773
) Appeal No. 01956362
William J. Henderson, ) Agency No. 4F-907-1133-95
Postmaster General, )
United States Postal Service,)
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
On August 3, 1996, Vassiliki K. Fuller (appellant) timely initiated
a request to the Equal Employment Opportunity Commission (EEOC
or Commission) to reconsider the decision in Vassiliki K. Fuller
v. United States Postal Service, EEOC Appeal No. 01956362 (June
24, 1996). 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
misapplication of established policy, 29 C.F.R. �1614.407(c)(2); or the
previous decision is of such exceptional nature as to have substantial
precedential implications, 29 C.F.R. �1614.407(c)(3).
The previous decision affirmed a final agency decision dismissing
Issues 1 through 4 of appellant's complaint as duplicative of an appeal
previously filed with the Merit Systems Protection Board (MSPB);
and dismissing the remainder of the complaint, Issues 5 through 11,
as untimely filed on June 16, 1995, one day past the filing deadline.
The previous decision noted that the envelope in which appellant had
mailed her complaint reflected an automated postmark of June 16, 1995.
Appellant's request for reconsideration addresses only the portion of
her complaint dismissed as untimely filed.<1>
In her request for reconsideration, appellant notes that she obtained
a Certificate of Mailing for her complaint, which shows a hand-stamped
postmark of June 15, 1995, as well as an electronically generated
postmark of June 15, 1995. Appellant stated that she had included
a copy of this receipt with her appeal, and attached a copy of it to
her request. The Commission has reviewed appellant's Notice of Appeal
and enclosures, and notes that there is no indication the Certificate
of Mailing was included therein. Because this evidence clearly was
available when the appeal was filed, it does not meet the criteria of
29 C.F.R. �1614.407(c)(1) and appellant's request therefore is denied.
However, the Commission reconsiders the matter on its own motion.
The Commission's regulations provide, in relevant part, "A document shall
be deemed timely if it is delivered in person or postmarked before the
expiration of the applicable filing period...." 29 C.F.R. �1614.604(b).
The regulations do not define "postmark," but the Commission has drawn a
distinction between dated postmarks affixed by the United States Postal
Service (USPS), and those affixed by private individuals using postage
meters. If an envelope bears both a meter postmark and a USPS postmark,
and the dates of the marks are in conflict, the USPS postmark prevails.
E.g., Adams v. Department of Defense, EEOC Request No. 05900266 (June
21, 1990); Benjamin v. U.S. Postal Service, EEOC Request No. 05880324
(July 29, 1988).
In the instant case, however, the envelope in which appellant mailed
her complaint contains two USPS postmarks: an automated postmark dated
June 16, 1995, and a hand-stamped postmark dated June 15, 1995, the date
which also appears both hand-stamped and electronically printed on the
Certificate of Mailing. The Commission has noted that a hand-stamped
USPS postmark constitutes a "postmark" for purposes of its regulations.
Daniels v. U.S. Postal Service, EEOC Appeal No. 01921257 (June 7,
1992).<2> The agency noted the existence of the hand-stamped postmark,
but failed to offer any justification for ignoring what is clearly a
USPS postmark showing appellant's complaint to have been timely filed.
The Commission therefore finds that the previous decision erred when it
found appellant's complaint to have been untimely filed.
The Commission notes that the previous decision did not reach the question
of whether Issues 1 through 4 were properly dismissed as being the subject
of an appeal before the MSPB. Given the agency's subsequent actions
with regard to these issues, see note 1 supra, the question is moot.
Upon review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet any of the criteria of 29 C.F.R. �1614.407(c).
Accordingly, it is the decision of the Commission to DENY appellant's
request for reconsideration. Having reconsidered the matter on its own
motion, the previous decision is REVERSED with regard to Issues 5 through
11, and Issues 5 through 11 are remanded to the agency for processing.
There is no further right of administrative appeal from the decision of
the Commission on this request for reconsideration.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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
appellant. If the agency does not comply with the Commission's order,
appellant may petition the Commission for enforcement of the order.
29 C.F.R. �1614.503 (a). Appellant 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. ��
1614.408, 1614.409, and 1614.503 (g). Alternatively, appellant 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. ��1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. �1614.410.
RIGHT TO FILE A CIVIL ACTION (R0993)
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 an 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. In the
alternative, you may file a civil action AFTER ONE HUNDRED EIGHTY (180)
CALENDARS 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:
Oct. 8, 1998
Date Frances M. Hart
Executive Officer
Executive Secretariat
1Issues 1 through 4 of the complaint, regarding appellant's removal
from employment, have since been resolved by the agency's rescission of
the removal, expungement of the record, and restoration of back pay and
benefits. Fuller v. U.S. Postal Service, MSPB Docket No. SF-0752-0541-I-1
(August 14, 1995).
2The cited case arose under the predecessor regulations to 29 C.F.R. Part
1614, which contained an identical provision regarding the filing of
documents.