0120171546
07-13-2017
Justine R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Justine R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171546
Agency No. 1G-391-0002-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 9, 2017, dismissing her complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Processing Clerk at the Agency's Processing & Distribution Center facility in Jackson, Mississippi.
On January 17, 2017, the Agency issued Complainant a Notice of Right to File her formal complaint (Notice). The Agency sent the Notice with signature confirmation for both Complainant and her attorney (Attorney). On February 14, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, on October 6, 2016, she realized that her pay grade and level had been changed three times reducing her from a Level 7 to a Level 6.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to file the formal complaint within the 15-day time limit. The Agency noted that the Attorney received the Notice as evidenced by her signature on the receipt confirmation on January 20, 2017. The Agency noted that Complainant signed for the Notice on January 30, 2017. Complainant filed her formal complaint on February 14, 2017. The Agency indicated that the filing was over 15 calendar days after the Attorney received the Notice. Furthermore, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant failed to show that she was in fact paid at the Level 6 as alleged. Therefore, the Agency found that Complainant failed to state a claim as alleged.
This appeal followed. On appeal, the Attorney argued that the tracking signature confirmation was a system error. In her brief, the Attorney asserted she did not sign for the Notice until January 30, 2017. The Attorney indicated that she contacted the postal facility for her P.O. Box and learned that the correspondence was placed in her post office box at some time after January 23, 2017. Furthermore, the Attorney stated that, as protocol, the document was stamped at the firm as received on January 30, 2017. As such, the Attorney claims that the formal complaint was filed within 15 calendar days of January 30, 2017, and the Agency's dismissal was not appropriate. The Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint.
The record establishes that the Agency sent the Notice by Signature Confirmation mail to both Complainant and her attorney. The Signature Confirmation tracking system indicates that the Notice sent to the Attorney's address of record (Tracking No. 2315 1670 0000 4811 5899) and was signed for by "J. Smoke" on January 20, 2017, at 9:22 a.m.2 Wacaster v. Social Sec. Admin., EEOC Appeal No. 0120113449 (Nov. 30, 2011) (filing period should run from date of when a complainant's attorney receives notice of the right to file per 29 C.F.R. � 1614.605(d)).
The Attorney argues that she did not, in fact, receive the Notice until January 30, 2017. However, the track and confirm signatures do not match the version of events provided by the Attorney. We note that the Attorney failed to provide any evidence to support the assertions made in the brief. While the Attorney indicates that an inquiry was made at the post office regarding when the document was placed in the law firm's P.O. Box, the Attorney did not obtain an affidavit or other proof that any such inquiry occurred at the post office or that the USPS tracking system information is somehow incorrect.
Based on the totality of the evidence in the record, we find that the Attorney received the Notice on January 20, 2017. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, it is undisputed that Complainant did not file her formal complaint until February 14, 2017, which is beyond the limitation period. We also note that the Attorney indicates that she believes the Notice was placed in the law firm's postal box sometime after January 23, 2017. Even assuming the Notice was placed in the law firm's postal box on January 24, the complaint would be due on February 8, 2017, but was not filed until February 14, 2017. In sum, on appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.3
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
July 13, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 We note that Complainant and the Attorney have addresses in different cities.
3 As the Commission has affirmed the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), we need not address the Agency's other basis for dismissal pursuant to 29 C.F.R. � 1614.107(a)(1).
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