01A23958_r
10-22-2002
Horace O. Brent Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Horace O. Brent Sr., v. United States Postal Service
01A23958
October 22, 2002
.
Horace O. Brent Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23958
Agency No. 1-J-608-0017-02
DECISION
On March 21, 2002, complainant contacted an EEO Counselor. Informal
efforts to resolve complainant's concerns were unsuccessful. The agency
sent, by certified mail, a notice of final interview, which stated
that complainant must file a complaint within 15 calendar days after
his receipt of the notice for the complaint to be considered timely.
The record indicates that the certified return receipt has been signed by
an unidentified individual at the complainant's address on April 30, 2002.
Complainant filed the formal complaint that is the subject of the instant
appeal on May 16, 2002.
On June 10, 2002, the agency issued its final decision dismissing
complainant's complaint for failure to comply with the applicable time
limit. The agency stated that complainant received the notice of final
interview on April 30, 2002, but that he did not file his complaint
until May 16, 2002, which was beyond the requisite time limit.
On appeal, complainant contends that he did not sign the certified
return receipt on April 30, 2002, and that he did not know the person
that sign it. Complainant further asserted that this form was found in
his mailbox on May 6, 2002.
EEOC Regulation 29 C.F.R. � 1614.106 requires the filing of a complaint
with the agency that allegedly discriminated against the complainant
within fifteen (15) calendar days after the date of receipt of the notice
of final interview.
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 Serv., 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
Serv., EEOC Request No. 05930337 (Sept. 10, 1993). The presumption,
however, is rebuttable.
However, 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 Fontanella
v. United States Postal Serv., EEOC Request No. 05940131 (April. 10,
1995) The record indicates in the instant case that the Notice of Right
to File was received at complainant's address on April 30, 2002, but was
not signed for by complainant. Instead the certified return receipt was
signed by an unidentified person. On appeal, complainant states that the
notice of right to file was signed by an individual whom he did not know.
The Commission finds that complainant has rebutted the presumption that
he, or someone in his household or family, received the Notice of Right
to File. Therefore, we can not find that the complaint was untimely filed.
Accordingly, the agency's final decision dismissing complainant's
complaint for untimely filing of the formal complaint is REVERSED.
The complaint is hereby REMANDED for further processing in accordance
with the Order below.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
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
October 22, 2002
__________________
Date