U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doretta F.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Appeal No. 2020005036 Hearing No. 530-2020-00209X Agency No. HS-TSA-00303-2019 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 1, 2020, dismissing her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Training Specialist, 0301, H band, at the Agency’s Philadelphia International Airport facility in Philadelphia, Pennsylvania. On April 10, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), age (57 and older at the time of the various incidents), and reprisal for prior protected EEO activity when: 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. 2020005036 2 1. From 2011 to March 3, 2019 and ongoing, Complainant has been subjected to harassment; 2. In or about 2011, management placed Complainant in a subordinate position under her peer; 3. In January 2017, management removed Complainant from a special project while her direct supervisor was on medical leave; 4. In or about October 2018, management did not select Complainant for a Training Manger position (vacancy number: unknown); and 5. In July 2017, management restructured the training department causing Complainant's role to be eliminated We note initially that the Agency listed many of the individual incidents of harassment separately, for a total of 58 incidents, while we have grouped most of them together under claim 1. At the conclusion of the investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but following a Motion by the Agency, the AJ dismissed the complaint for untimely filing of the formal complaint. The Agency subsequently issued a final order affirming the AJ’s dismissal. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turns, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right (NRF) to do so. Here, the record contains a copy of a U.S. Postal Service return receipt form showing that the NRF was received and signed for at Complainant’s address of record on March 25, 2019. Complainant, however, did not file her Formal Complaint until April 10, 2019, which is beyond the regulatory 15-day limitation period. Complainant argues that she was away from home at the time and that the NRF was signed for by her husband, who mistakenly informed her that the NRF was received on March 26 instead of March 25. As such, Complainant argues, she believed she had until April 10, 2019 to file her complaint. The Commission has held that receipt of a document at complainant’s correct address (address of record) by a member of the complainant’s family or household of suitable age and discretion creates a rebuttal presumption of constructive receipt. See Fontanella v. General Services Administration, EEOC Request No. 05940131 (April 10, 1995). 2020005036 3 We noted in Fontenella, that this presumption is a rebuttable one and further found that a complainant “may present evidence on appeal before the Commission to rebut this presumption by demonstrating that the individual who signed for his mail was not a family or household member of suitable age or discretion to do so” See id., citing Baunchand v. USPS, EEOC Request No. 05920389 (May 29, 1992) (request granted because appellant had demonstrated that the final agency decision had been improperly delivered to an 11 year old cousin at an outdated address). In the instant case, however, we note that Complainant maintains that the person who signed for the NRF was her husband, not a minor or someone who was not a family or household member. As such, we find that Complainant has failed to rebut the presumption of constructive receipt on March 25, 2019, and thus we agree with the AJ that Complainant’s formal complaint was untimely filed. CONCLUSION The Final order is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020005036 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 December 7, 2020 Date
