MARLENE PAOLETTI, APPELLANT,
v.
MARVIN T. RUNYON, JR., POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE, AGENCY.

Request No. 
05950259
Appeal No. 01944177
Agency No. 4I-553-1025-94

August 17, 1995

GRANTING OF REQUEST FOR RECONSIDERATION

INTRODUCTION

On January 4, 1995, the United States Postal Service (hereinafter referred to as the agency) initiated a timely request to the Equal Employment Opportunity Commission (EEOC) to reconsider the decision in Marlene Paoletti v. Marvin T. Runyon, Jr., Postmaster General, United States Postal Service, EEOC Appeal No. 01944177 (December 1, 1994). EEOC Regulations provide that within a reasonable period of time, the Commissioners may, in their discretion, reconsider any previous Commission decision. 29 C.F.R. §1614.407(a). The regulations also provide that a party may request reconsideration of a previous Commission decision. 29 C.F.R. §1614.407(b). However, the party requesting reconsideration must submit written argument or evidence which tends to establish one or more of the following three criteria: 29 C.F.R. §1614.407(c)(1) (new and material evidence is available that was not readily available when the previous decision was issued); 29 C.F.R. §1614.407(c)(2) (the previous decision involved an erroneous interpretation of law or regulation, or material fact, or a misapplication of established policy); and 29 C.F.R. §1614.407(c)(3) (the decision is of such exceptional nature as to have substantial precedential effects). The agency brings its request under 29 C.F.R. §1614.407(c)(2). For the reasons set forth herein, the agency's request to reconsider is GRANTED.

ISSUE PRESENTED

Whether the previous decision properly reversed the agency's determination that appellant failed to file her complaint within fifteen days of receiving the Notice of Final Interview.

BACKGROUND

In light of the narrow issue to be decided herein, the Commission will not repeat the previous decision's narrative. Instead, we note the following salient facts: on November 17, 1993, appellant sought EEO counseling. She alleged that the agency discriminated against her on the basis of age when she was investigated and subsequently discharged because of financial shortages at the facility where she worked. She was terminated on November 29, 1987. Appellant indicated that she only learned in November 1993 that she was the only person investigated with regard to the irregularities. [FN1] Appellant also argued that she was unaware of the requirement that she contact an EEO counselor within a specified time period.

The parties were unable to resolve the matter informally; therefore, the agency indicated that on December 31, 1993, it provided appellant a Notice of Final Interview (notice).[FN2] The notice set forth appellant's right to file a formal complaint. Additionally, the notice indicated that "the complaint will be deemed timely if it is delivered in person or postmarked before the expiration of the 15 calendar day filing period, or, in the absence of a legible postmark, if it is received by mail within 5 calendar days of the expiration of the 15-day filing period."The agency contends that appellant did not file her formal complaint until February 15, 1994. The agency, in its final decision, dismissed appellant's complaint on the grounds that she sought EEO counseling in an untimely manner. The agency noted that appellant's worksite contained posted information regarding the EEO process and procedures. The agency also found that appellant failed to file her formal complaint within the fifteen day filing period.

The previous decision reversed both of the agency's grounds for dismissing appellant's complaint. The agency, according to the previous decision, failed to support its assertion that it posted relevant information regarding the EEO process at appellant's worksite. [FN3] The previous decision also found that the agency failed to provide evidence to support its assertion that appellant ever received the notice. The decision noted that although appellant's representative was provided with a copy of the notice, he was not an attorney; therefore, the time limitation period was never triggered. [FN4] The agency, having the burden of proving when appellant received the notice, was determined to have improperly dismissed appellant's complaint on the grounds that she failed to file her complaint in a timely manner.

In the agency's request for reconsideration (request), it contends that the previous decision erred by stating that the record did not contain evidence that appellant received the notice on December 31, 1993. The agency, in the request, provided copies of the certified mail receipt and the certified mail return receipt (green card) that accompanied the notice when it was mailed to appellant. The certified mail receipt indicates that the notice was mailed to appellant on December 28, 1993. The green card bears appellant's signature and indicates that the notice was received by her on December 31, 1993. The agency asserts that the above documents were in the complaint file when it was forwarded to the Commission. The agency also notes that appellant, in her statement on appeal, said that "[o]n December 31, 1993, I received correspondence from [the EEO Counselor]." Appellant also noted that "[a]t this time she advised me that if I wished to pursue this action I must file a Form 2565 with the Postal Service within 15 days [sic] this form was mailed on Jan 14."[FN5]

Appellant, in her response, opposes the agency's request. She again asserts that her complaint [FN6] was mailed to the agency on January 14, 1994; furthermore, she offers, for the first time, a copy of a certified mail receipt which purports to indicate that her complaint was mailed to the agency on January 14, 1994.

ANALYSIS AND FINDINGS

After a careful review of the record, the Commission finds that the agency's request for reconsideration meets the criterion of 29 C.F.R. §1614.407(c)(2). It is therefore the decision of the Commission to grant the request.

A review of the complaint file indicates that the previous decision did involve an erroneous interpretation of a material fact. The complaint file does contain copies of the documents that the agency submitted in its request. The previous decision, therefore, erred when it found that the agency had presented no evidence which indicated the date appellant received the notice.

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. Complaints are deemed filed when received by an appropriate agency official, unless postmarked earlier. 29 C.F.R. §1614.604(b).

EEOC Regulation 29 C.F.R. §1614.107(b) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in ... §1614.106 ... unless the agency extends the time limits in accordance with §1614.604(c).

The record indicates that appellant received the notice on December 31, 1993. Therefore, she had to file her complaint with the agency by January 15, 1994. January 15, 1994, however, was a Saturday. We further note that Monday, January 17, 1994 was a federal holiday; consequently, appellant had until Tuesday, January 18, 1994, to file her complaint in a timely manner. 29 C.F.R. § 1614.604(d).

Appellant has presented evidence that she filed her complaint on January 14, 1994. This evidence, a certified mail receipt bearing the postmark date of January 14, 1994, is consistent with appellant's statement on appeal that she mailed her complaint on January 14, 1994, and the fact that her complaint is dated January 13, 1994. The only evidence presented by the agency to establish that appellant's complaint was filed on February 15, 1994, is the date stamp that appears on the formal complaint when it was received by the agency's Human Resources Appeals Section. However, we also note that the record contains a letter dated February 15, 1994, from the Human Resources Department located in Chicago, Illinois to the agency's Milwaukee EEO office; the letter indicates that appellant's complaint was postmarked January 13, 1994. The Commission finds that the preponderance of the evidence indicates that appellant did file her formal complaint within fifteen days of receiving the notice.

CONCLUSION

After a review of the agency's request for reconsideration, appellant's response, the previous decision, and the entire record, the Commission finds that the agency's request meets the criterion of 29 C.F.R. §1614.407(c)(2), and it is the decision of the Commission to GRANT the agency's request. However, the agency's final decision, regarding whether appellant filed her complaint in a timely manner, remains REVERSED. The decision of the Commission in EEOC Appeal No. 01944177 (December 1, 1994) is MODIFIED and the agency shall comply with the Order stated in our previous decision and reprinted below. 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 investigate the issue of whether during the period of more than thirty (30) days prior to December 29, 1987, it posted EEO information on display, or in some other manner provided EEO information to appellant, that specifically referred to the time limit for contacting an EEO Counselor. The agency shall gather any other evidence necessary to determine when appellant learned of the time limit for contacting an EEO Counselor. Within thirty (30) days of the date this decision becomes final, the agency shall issue a new final agency decision accepting or rejecting the complaint after it determines whether appellant had actual or constructive notice of the time limit for contacting an EEO Counselor or acted in a timely manner once she obtained actual or constructive knowledge.

A copy of the new final agency decision on the complaint 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 the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. §1614.503(a). The 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. See29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the 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 the 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.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

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 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 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:

Frances M. Hart
Executive Officer
Executive Secretariat

FN1. The previous decision also noted that appellant indicated that in 1990, she contacted an EEO counselor with regard to certain issues that were never addressed by the agency.

FN2. Appellant's representative was provided a copy of the notice on January 4, 1994.

FN3. The Commission has previously held that under the constructive notice rule even if an employee has no actual personal knowledge of EEO deadlines, the fact that the agency posted notices is sufficient to trigger his duty to comply with the deadlines. Brown v. Department of Commerce, EEOC Request No. 05890978 (January 10, 1990). Recently, the Commission held that information in an EEO Counselor's report regarding posting of EEO information was inadequate to support application of a constructive notice rule. Pride v. United States Postal Service, EEOC Request No. 05930134 (August 19, 1993) (citing Polsby v. Shalala, 113 S.Ct. 1940 (1993)). The Commission found in Pride that the agency had merely made a generalized affirmation that it posted EEO information. Id. The Commission found that it could not conclude that appellant's contact of an EEO Counselor was untimely without specific evidence that the poster contained notice of the time limit. Id.

FN4. EEOC Regulation 29 C.F.R. §1614.605(d) provides, in pertinent part, that when the complainant designates an attorney as representative, service of documents and decisions on the complainant shall be made on the attorney and not on the complainant, and time frames for receipt of materials by the complainant shall be computed from the time of receipt by the attorney. However, the receipt of a document by a non-attorney representative does not trigger an applicable filing period. Wilda Santana-Caro v. United States Postal Service, EEOC Request No. 05930015 (May 28, 1993).

FN5. The agency's request does not challenge the previous decision's determination that the agency failed to establish that appellant sought EEO counseling in an untimely manner. Therefore, the decision herein will not address that issue.

FN6. We note that appellant's response indicates that her "appeal" was mailed to the agency on January 14, 1994. The Commission, however, is satisfied that appellant meant that her complaint was mailed on January 14, 1994.