Bula P,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

2019003600 (E.E.O.C. Aug. 21, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Bula P,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.

Appeal No. 2019003600

Agency No. 4B-100-0040-19

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final decision dated April 11, 2019, dismissing a formal
complaint of 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

During the period at issue, Complainant worked for the Agency as a Sales/Service/Distribution
Associate in the Bronx, New York.

On March 23, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on disability and in reprisal for prior protected EEO activity. In its
final decision, dated March 23, 2019, the Agency determined that the formal complaint was
comprised of the following claims:

1. On or about April 2, 2018, management failed to accommodate her with a suitable
work assignment;

2. On an unspecified date, her change of schedule was revoked.

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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3. On unspecified dates, her request for leave was denied.

The Agency dismissed the formal complaint on the grounds that Complainant’s formal complaint
was untimely filed. The Agency reasoned that the Notice of the Right to File a Formal
Complaint (Notice) was signed for at Complainant’s address of record on February 23, 2019.
The Agency found that Complainant filed her formal complaint on March 23, 2019, outside of
the applicable 15-day time limit.

The Agency also dismissed claims (1) and (2) for alleging the same claims that have been
decided by the Agency or the Commission. Specifically, the Agency reasoned that the instant
complaint: “is identical to the claim raised in [her] previous EEO complaint [Agency Case No.]
4B-100-0073-18, [EEOC Appeal Nos.] 0120182747 and 2019001341 (on or about April 2, 2018,
management failed to accommodate [her] with a suitable work assignment; and on an
unspecified date, [her] change of schedule was revoked)…[Complainant] is raising

The instant appeal followed.

ANALYSIS AND FINDINGS

Dismissal for Untimely Filing of Formal Complaint

The Agency improperly dismissed Complainant’s complaint finding that her formal complaint
was untimely filed. The Commission previously has held that a receipt of a document at a
complainant’s correct address by a member of Complainant’s family or household of suitable
age, and discretion constitutes constructive receipt by Complainant. See Baunchand v. U.S.
Postal Serv., EEOC Request No. 05920389 (May 29, 1992). When a certified U.S. return receipt
has been signed by an unidentified individual at the 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 Complainant on that date. See Pazinick v. U.S. Postal Serv., EEOC
Request No. 05930337 (Sept 10, 1993). The presumption, however, is rebuttable.

Complainant submitted, with her formal complaint, a statement asserting that she did not receive
the Notice on February 23, 2019, and that a family member did not sign the Notice on that date.2
Rather, Complainant asserts that a receipt for the Notice was “fraudulently” signed by the letter
carrier who delivered the Notice on that day, and she did not receive the Notice until March 10,
2019, when she retrieved a large amount of mail from her mailbox. Complainant asserts that she
contacted several USPS officials regarding the “fraudulent activity.”

2 The record contains a copy of a USPS Tracking Intranet Delivery Signature and Address
printout for the Notice. The tracking printout states that the “item was delivered on [February
23, 2019].” However, we are unable to decipher the signature contained on the tracking printout,
as well as delivery address.
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The record contains various emails to Agency (USPS) officials regarding Complainant’s
allegation that the letter carrier signed for the Notice without her knowledge or permission. In
one email from Complainant dated May 20, 2019 to an Agency official, she inquired about the
USPS investigation into the “fraudulent” signing of the Notice. She further asserts that she saw
an Agency official in person who told her that he spoke to the carrier and that the carrier said that
he signed for it because he did not want to take it (the Notice) back to the station.

Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining
sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of
Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep’t of Def. EEOC
Request No. 05920506 (Aug. 25, 1992)). The Agency has failed to sufficiently establish that
Complainant received the Notice on February 23, 2019. While Complainant asserts that the
letter carrier signed for the Notice without her knowledge or permission, the Agency does not
address this assertion or produce some evidence regarding this matter (such as an affidavit from
the letter carrier who delivered the Notice).

Based on the foregoing, we find the Agency’s dismissal that Complainant’s formal complaint is
untimely was improper.

Dismissal for Stating the Same Claim

The Agency improperly dismissed claims (1) and (2) for stating the same claim previously
decided by the Agency or the Commission. The regulation set forth at 29 C.F.R. §
1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission. While the Agency asserts
that claims (1) and (2) are the same claims as set forth in Agency Case No. 4B-100-0073-18, we
disagree. It has long been established that "identical" does not mean "similar." The Commission
has consistently held that in order for a complaint to be dismissed as identical, the elements of
the complaint must be identical to the elements of the prior complaint in time, place, incident,
and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996)
rev’d on other grounds EEOC Request No. 05960524 (Apr. 24, 1997).

Complainant’s prior EEO complaint involved a denial of a reasonable accommodation claim
similar to the instant complaint. However, we find that these matters are not identical. In the
instant complaint, Complainant references a date in January 2019 (Complainant’s prior EEO
case involved earlier dates in 2018).3 Specifically, Complainant asserts in the instant complaint
that on or about January 14, 2019, she requested a reasonable accommodation and was asked to
submit documentation by the Agency.

3 The record also contains a copy of the EEO Counselor’s Report for the instant matter. The
EEO Counselor’s Report contains the date “Janaury 14, 2019” for the date of the alleged
discriminatory incident.

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Complainant asserts that she had previously provided all necessary documentation to the
Agency.4 EEOC Compliance Manual, Section 2, “Threshold Issues”, EEOC Notice No.
915.003, at 2-73 (July 21, 2005), provides that “because an employer has an ongoing obligation
to provide a reasonable accommodation, failure to provide such accommodation constitutes a
violation each time the employee needs it.”

Based on the foregoing, we do not find that the Agency established that instant complaint is
identical to Complainant’s prior complaint. Complainant requests that the instant complaint be
consolidated with her prior EEO case (Agency Case No. 4B-110-0073-18). If Complainant’s
prior EEO case is pending with the Agency, 29 C.F.R. § 1614.606 provides, in pertinent part,
that “[t]wo or more complaints of discrimination filed by the same complainant shall be
consolidated by the agency for joint processing after appropriate notification to the
complainant.” If the prior EEO case is before an EEOC Administrative Judge, AJs may, in their
discretion, consolidate two or more complaints filed by the same complainant. 29 C.F.R.
§1614.606.

We REVERSE the Agency’s final decision dismissing Complainant’s complaint and we
REMAND this matter to the Agency for further processing in accordance with the ORDER
below.

ORDER (E0618)
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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

4 The Agency may not ask for medical documentation in response to a request for a reasonable
accommodation when: (1) both the disability and the need for the reasonable accommodation are
obvious; or 2) the individual has already provided the employer sufficient information to
substantiate that he/she has a disability and needs the reasonable accommodation requested.
Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act, EEOC No. 915.002 at Question 8 (Oct. 17, 2002).
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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
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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.
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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

August 21, 2019
Date