01991333
10-14-1999
Denise E. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Denise E. Smith, )
Appellant, )
)
v. ) Appeal No. 01991333
) Agency No. 4-K-200-0138-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal was postmarked December 3, 1998.
The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to
submit evidence of the date of receipt, the Commission presumes that
appellant's appeal was filed within thirty (30) days of receipt of the
agency's final decision. See, 29 C.F.R. �1614.402.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to timely file a formal complaint upon receiving
notice of her right to do so.
BACKGROUND
Appellant initiated contact with an EEO Counselor on March 28, 1998,
regarding allegations of discrimination on the bases of sex (female) and
reprisal (prior EEO activity). Informal efforts to resolve appellant's
allegations were unsuccessful. On August 27, 1998, the agency mailed
to appellant via certified mail, a document entitled �Notice of Right
to File Individual Complaint�. Therein, the agency informed appellant
that she had fifteen (15) days from the date of the receipt of the
Notice, in which to file a formal complaint. Said Notice was received
at appellant's address of record on August 27, 1998, as shown by the
certified mail domestic return receipt, a copy of which is part of the
record herein. Appellant's formal complaint is dated September 12,
1998, and is postmarked September 22, 1998.
In its final decision (FAD) dated November 6, 1998, the agency dismissed
appellant's complaint as untimely pursuant to 29 C.F.R. �1614.107(b).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint required by 29 C.F.R. �1614.105(d), (e), or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
The record herein indicates that on August 27, 1998, a Notice of Right to
File Individual Complaint was received at appellant's address of record.
Said Notice informed appellant of her right to file within fifteen (15)
days of her receipt of the notice. The record indicates that appellant's
complaint was postmarked September 22, 1998.
On appeal, appellant asserts that while she �. . . didn't receive the
Certified Letter to sign. . . ,� she �. . . did read the form which
stated I had 15-day (sic) before deadline of sending out my complaint
(sic).� We find that appellant has failed to persuade the Commission
that she did not learn on August 27, 1998 that she had 15 days in which
to timely file her formal complaint.
The Commission has previously 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. Here, the domestic return
receipt was delivered to appellant's address of record and signed for
by an individual at appellant's home on August 27, 1998. Appellant's
complaint, postmarked September 22, 1998, was not filed within the 15-day
time limit. In accordance with EEOC Regulation 29 C.F.R. �1614.107(b),
the agency properly dismissed appellant's complaint as untimely.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint as
untimely is hereby AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
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 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 (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:
October 14, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations