Dixie K.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity Commission

Jul 23, 2019

2019002799 (E.E.O.C. Jul. 23, 2019)

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

Dixie K.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture,
Agency.

Appeal No. 2019002799

Agency No. USDA-CCD-CF-2018-00085

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency final decision, dated December 28, 2018, 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. The Commission accepts the
appeal in accordance with 29 C.F.R. § 1614.405.

BACKGROUND

During the relevant time, Complainant worked as a Senior Program Analyst at the Agency’s
Internal Controls Division, Office of Chief Financial Officer in Washington, D.C.

On February 13, 2018, Complainant filed a formal complaint alleging that the Agency subjected
her to discriminatory harassment on the bases of race (Hispanic) and national origin (Hispanic).
Her claim of a hostile work environment was comprised of the following events:

1. Since October 31, 2016 and ongoing, she has not been allowed to carry
out the functions of her office;

2. From April 26, 2017 through September 6, 2017, she was not allowed to
participate in the Continuous Process Improvement projects;

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 September 15, 2017, her supervisor refused to sign her questionnaire
for an OPM Desk Audit;

4. From September 19, 2017 through October 30, 2017, her supervisor
refused to meet with her;

5. On October 30, 2017, she received an “Unacceptable” on her FY2017
Performance Appraisal and was placed on a Performance Improvement
Plan (PIP);

6. On November 6, 2017, she did not receive a paycheck;

7. Her annual leave request submitted on November 14, 2017, was not
approved in a timely manner; and,

8. On unspecified dates, she was denied training, mentoring, and coaching;
and,

Complainant also claimed, based on race, national origin and her disability (unspecified),
that

9. Since November 16, 2916, she was denied a reasonable accommodation.

On February 21, 2018, the Agency dismissed the formal complaint on the grounds that it was
untimely filed. Complainant appealed the decision to the Commission. The appeal was assigned
EEOC Appeal No. 0120181491.

Thereafter, on April 10, 2018, the parties executed a settlement agreement resolving the matter.
When the Commission was informed of the settlement, Appeal No. 0120181491 was
administratively closed.

In late May 2018, Complainant filed a new complaint, which included the allegation that she
“felt coerced into signed the settlement agreement for Case No. USDA-CCD-2018-00085.” The
Agency dismissed the formal complaint, which again Complainant appealed to the Commission.
On appeal, Complainant reiterated her belief that the agreement should be voided because she
was coerced into signing it.

Alternatively, Complainant argued that she revoked the agreement within the seven-day
revocation period specifically provided for in the agreement. Upon review, the Commission did
not find coercion, but did conclude that Complainant effectively expressed her intention to
revoke the agreement. As a result, the underlying complaint was reinstated from the point
processing ceased.
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Specifically, the Commission ordered the Agency to “either issue a letter accepting the claims in
Case No. CCD-CF-2018-00085 for investigation or issue a new decision dismissing the
complaint . . . .” See Complainant v. Department of Agriculture, EEOC Appeal No. 012082482
(Nov. 7, 2018).

In compliance with the Commission’s order, on December 28, 2018, the Agency issued a final
decision dismissing the instant complaint on the grounds that it was untimely filed. According to
the Agency, Complainant received the Notice of Right to File Discrimination Complaint
(hereinafter “Notice”) on January 25, 2018. The Agency found, however, that Complainant did
not file a formal complaint until February 13, 2018, nineteen days later. The Agency reasoned
that Complainant did not allege she was incapacitated and unable to file within the fifteen-day
time limitation.

Complainant filed the instant appeal. On appeal, Complainant, through her attorney, argues that
she did not check her mail at her apartment complex and did not receive the Notice until January
30, 2018. Regarding the Agency determination that the Notice was received at Complainant’s
residence on January 25, 2018, Complainant maintains that neither the concierge, nor any one
else, was authorized to sign for her letters or packages. Further, she argues that she was at work
on January 25, 2018 and not present at her home. Finally, Complainant references a January 31,
2018 email to a potential attorney as contemporaneous evidence of her receipt of the Notice the
day before.

In response, the Agency reiterates that the Notice was delivered on January 25, 2018, making
Complainant’s filing on February 13, 2018 untimely. Referencing Pinckney v. Dep’t of the
Treasury, EEOC Appeal No. 01A34644 (May 6, 2004) (citing Pazinick v. United States Postal
Service, EEOC Request No. 05930337 (September 10, 1993), the Agency contends that “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 complainant on that date.”

ANALYSIS AND FINDINGS

EEOC Regulation 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 turn, requires the filing of a formal complaint within fifteen days of
receiving notice of the right to do so.

The instant record contains a U.S. Postal Service Tracking statement stating that the Notice was
delivered on “January 25, 2018 at 3:09 p.m. Delivered, Left with Individual, Arlington, VA
22209.” The record also reveals that the item was signed for by “W Tague”. The formal
complaint, however, was not filed until more than fifteen days later, on February 13, 2018. As
noted above, Complainant contends she did not receive the Notice until January 30, 2018.

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The Commission has previously found that a generalized reference to a city and zip code,
without further details of the address, is insufficient evidence of receipt by Complainant. See
Complainant v. United States Department of Agriculture (Forest Services), EEOC Appeal No.
0120172673 (June 26, 2018); Candell v. United States Postal Service, EEOC Appeal No.
0120071404 (March 20, 2007). 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. Department of Energy, EEOC Request No. 05930703 (January 4,
1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25,
1992)). Further, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January
14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or
proof to support its final decisions.” See also Gens v. Department of Defense, EEOC Request
No. 05910837 (January 31, 1992).

As for the signature obtained at delivery of the Notice, Complainant’s attorney observes on
appeal that the Agency decision only broadly refers to the USPS Track and Confirm transmittal
notice as indicating the Notice was “delivered to [Complainant’s] address of record, and signed
for as having been received, on January 25, 2018” (emphasis added). It is only in response to the
appeal, that the Agency identifies a signature by “W Tague” and provides a copy of the signature
confirmation. In arguing for the sufficiency of such signature, the Agency cites Pinckney.

The Commission finds the Agency’s reference to Pinckney to be erroneous and its reliance on
Pazinick to be misplaced. A review of Pinckney2 reveals no citation to any Commission cases,
let alone Pazinick. In Pazinick, the Commission reiterated that receipt by a member of a
complainant’s family or household, at the address of record, shall be considered effective receipt
of the document by the complainant. See EEOC Request No. 05930337 (Sept. 10 1993) (citing
Horace M. Chambers v. Michael P.W. Stone, Secretary, Department of the Army, EEOC
Request No. 05910895 (March 11, 1992); Robert Fischer v. Anthony M. Frank, Postmaster
General, United States Postal Service, EEOC Request No. 05900389 (May 3, 1990). This
presumption, however, is rebuttable. A complainant may present evidence on appeal to rebut
such presumption by demonstrating that the individual who signed for her mail was not a family
or household member of suitable age or discretion to do so. See Baunchand v. U.S. Postal
Service, EEOC Request No. 05920389 (May 29, 1992).

Here, Complainant argues that she lives alone and the concierge in her building is not authorized
to sign for mail. While she has not provided proof to support such assertion, we find the
circumstances in this case justifies a reversal of the Agency’s dismissal. Compare White v.
United States Postal Svc. EEOC Appeal No. 01980555 (Sept. 3, 1998) (Complainant asserted
that signature bearing his name was not his, nor a member of his family or household.

2 In Pinckney, both the first and second attempts to send Complainant’s attorney the Notice
resulted in the unclaimed Notices return to the Agency. The attorney acknowledged receiving
the (third mailing of) Notice more than fifteen days prior to the filing of the formal complaint.
Consequently, the Agency’s dismissal of the complaint was affirmed. See EEOC Appeal No.
01A34644.
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The absence of proof to support his assertion resulted in the Commission finding that he did not
rebut the presumption of constructive receipt). Specifically, in this case (1) the Agency has not
show that the Notice was delivered to the address of record, as reflected by the absence of a
residence number and street name; (2) the signature reflects a surname that differs from
Complainant’s; and (3) the dismissal decision was not clear that it was relying upon constructive
receipt, based on the signature of an unidentified individual, thereby depriving Complainant of
the fair opportunity to rebut such presumption on appeal.

CONCLUSION

The Agency’s final decision dismissing the formal complaint is REVERSED. The matter is
REMANDED 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).
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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.
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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

July 23, 2019
Date