EEOC Appeal No. 0120171524
06-28-2017
Herta K. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herta K,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171524
Agency No. 1G321000717
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 27, 2017, dismissing a formal 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.
During the period at issue, Complainant was an applicant for a position with the Agency in Tallahassee, Florida.
On October 31, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On December 13, 2016, the Agency sent a Notice of a Right to File Individual Complaint (Notice) to Complainant via Signature Confirmation (No. 2305 1590 0001 2491 2105). The Agency stated that a review of the Track and Confirm Record indicates that the Notice was delivered and signed for at Complainant's address of record on Saturday, December 17, 2016. The Notice was not signed for by Complainant. Instead, the Notice was signed for by an unidentified individual who notated that it was received by the "2300 Bluff Oak Way Office".
On January 7, 2017, Complainant filed the instant formal complaint, claiming discrimination based on race, national origin, and reprisal for prior protected activity.
On January 27, 2017, the Agency issued a decision dismissing the complaint as untimely filed pursuant to 29 C.F.R. � 1614.106(b). In its decision, the Agency explicitly relied on the theory of constructive receipt and noted that an individual at Complainant's address of record signed for the document on December 17, 2016. The Agency determined that, given the December 17, 2016 receipt date, Complainant had fifteen days in order to timely file her complaint. Due to a federal holiday, Complainant had until Tuesday, January 3, 2017 to timely file. However, Complainant did not file until January 7, 2017.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 formal complaint.
The Agency dismissed the formal complaint on the grounds that it was untimely filed. The Agency determined that Complainant received the notice December 17, 2016, but did not file her formal complaint until January 7, 2017, which the Agency determined was more than fifteen days after receipt of the notice.
When a certified U.S. Postal return receipt has been signed by an unidentified individual at a complainant's address on a date certain to indicate delivery of an important document, the Commission has relied on a presumption of constructive receipt by a complainant on that date. See Pazinick v. United States Postal Service, EEOC Request No. 05930337 (September 10, 1993); Dimase v. United States Postal Service, EEOC Request No. 0120130634 (Apr. 12, 2013).
The presumption, however, is rebuttable. On appeal, the Complainant states that she did not personally receive the Notice on December 17, 2016. Rather, Complainant asserts that the Notice was delivered to the apartment building of her residence and signed for by someone who was employed by the apartment complex. The notation on the signature card supports Complainant's version of what occurred. Complainant states that it while it was signed for, she was not timely informed of its receipt by the apartment complex office. Complainant states that she later spoke with an Agency EEO Specialist who helped her track down the Notice. Given the particular circumstances of this case, we find adequate justification to excuse Complainant's brief delay in filing her formal complaint. See 29 C.F.R. � 1614.604(c).
We REVERSE the Agency's final decision dismissing the formal complaint on the ground that it was untimely filed, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E1016)
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 was issued. 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 was issued, 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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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 (R0610)
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 (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.
Carlton M. Hadden, Director
Office of Federal Operations
June 28, 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.
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0120171524