Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1988)

Jonnie M. KNIGHTON, Plaintiff-Appellant,v.Anthony M. FRANK, Postmaster General, U.S. Postal Service,Defendants-Appellees.

No. 90-15089.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 8, 1991.Decided May 29, 1991.

Before HUG and POOLE, Circuit Judges, and ATKINS,^*  District Judge.

MEMORANDUM^** 

Jonnie Knighton appeals the district court's order dismissing her action against the Postmaster General under the Rehabilitation Act. Knighton contends that the district court erred by holding that her claim was barred when she failed to file a timely administrative complaint of discrimination. We reverse and remand (for trial).

Knighton was employed by the United States Postal Service on April 3, 1986 when she requested Equal Employment Opportunity ("EEO") counseling for handicap discrimination. She received a notice of final interview from an EEO counselor on May 8, 1986. The letter advised Knighton that a formal administrative complaint of discrimination must be filed within 15 calendar days from the date of the letter. On the same day, however, Knighton withdrew her informal EEO complaint to await a final decision on her request for a light-duty assignment. The Postal Service sent her a letter on May 13, 1986 stating that it considered her complaint resolved and that the case would be closed.

On May 15, 1986, the Postal Service notified Knighton that it would not grant her request for a light-duty assignment. On May 21, 1986, she again requested EEO counseling on the ground that she was given a notice of discharge based on her disability and was denied a light-duty assignment. Knighton was terminated on May 28, 1986.

The Postal Service contends that the EEO counselor sent Knighton a "final interview" letter by certified mail on July 15, 1986. Allegedly, the letter informed Knighton that she had 15 days to file an administrative EEO complaint of discrimination. Knighton, however, contends that she never received the letter. The Postal Service was not able to produce the returned receipt for the letter or any other evidence that the letter was received.

On February 8, 1988, 21 months after her termination, Knighton sent a letter to the Postal Service. In the letter, she denied ever receiving the notice of final interview. The Postal Service responded on March 23, 1988 that the letter was sent on July 15, 1986 and that the Postal Service considered her case closed. On April 20, 1988, Knighton, through counsel, requested copies of the notice of final interview and other documents.

On June 2, 1988, Knighton filed a formal complaint of discrimination with the Postal Service. On July 25, 1988, the Postal Service issued a final agency decision rejecting Knighton's complaint on the ground that she failed to file her formal administrative complaint within 15 days after her July 15, 1986 interview.

Knighton filed an appeal with the EEOC Office of Review and Appeals and then filed a request to reopen with the EEOC. Both were denied. Knighton then filed this action in district court. The Postal Service moved to dismiss or, in the alternative, for summary judgment on the ground that Knighton failed to file a timely formal administrative complaint of discrimination and, therefore, failed to exhaust her administrative remedies.

The district court held that even if Knighton had never received the July 15, 1986 notice of final interview, she failed to exhaust her administrative remedies because the March 23, 1988 letter fulfilled the notice requirement, and she failed to file within 15 days thereafter. The district court also found that there was no basis for equitable tolling of the 15-day deadline. Knighton timely appeals.

Summary judgment is not appropriate when there remains a genuine issue of fact, the resolution of which is necessary to decide whether a party is entitled to judgment. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Here, there is a genuine issue of material fact as to whether Knighton ever received the notice of her final interview allegedly sent on July 15, 1986. If she had not, the 15-day period to file her formal complaint never started. See 29 C.F.R. Sec. 1613.213(a) (15-day period begins upon receipt of notice of final interview).

The letter sent by the Postal Service on March 23, 1988, relied upon by the district court, could not have started the running of the 15-day period because the letter did not conform to the requirements of the regulations. The letter neither informed Knighton of her right to file a formal complaint nor informed her of the 15-day deadline. See id. Thus, there remains the issue of whether Knighton ever received the July 15, 1986 notice of final interview.

REVERSED and REMANDED.