0120152035
10-13-2015
Felix R.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Contract Management Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Felix R.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 0120152035
Agency No. P5-15-0145
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 6, 2015, dismissing his 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
During the period at issue, Complainant worked as a Contract Specialist at the Agency's Operations Directorate in Chester, Virginia.
On May 1, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, age, and in reprisal for prior EEO activity.
On May 6, 2015, the Agency issued the instant final decision. Therein, the Agency dismissed Complainant's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that Complainant received the Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") on February 13, 2015, which notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until May 1, 2015, to file his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
Complainant, on appeal, argues that his complaint was timely filed. Specifically, Complainant states that a USPS Signature Confirmation receipt indicates "another person had sign for this data on 13 February 2015. [Complainant] did not become aware of this documentation until going to his mail box and receiving the notice from the front office in his apartment complex that a letter was there for him to pick up. This apartment notice did not specify what type of letter was addressed to [Complainant]."
The instant appeal 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 turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Based on a thorough review of the record, the Commission concludes that the dismissal, due to the untimely filing of the formal complaint, was improper.
The Commission previously has held that 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, e.g. Baunchand v. U.S. Postal Service, 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, e.g. Pazinick v. U.S. Postal Service, EEOC Request No. 05930337 (September 10, 1993). The presumption, however is not rebuttable.
The Commission has further held that equity demands that a complainant be provided with adequate notice when the presumption of constructive receipt is relied on the dismissal of unwillingness to provide him with a full and fair opportunity to rebut it. See generally Fontanella v. U.S. Postal Service, EEOC Request No. 05940131 (April 10, 1995). Specifically, the Commission in Fontanella stated that "when an agency elects to dismiss a complaint on timeliness grounds, relying on a certified receipt signed by an individual other than the complainant, it shall advise the complainant, in its final agency decision, of the substance of the constructive receipt doctrine and that it is relying upon that doctrine to dismiss [complainant's] complaint as untimely."
In the instant matter, the record contains a copy of a United States Postal Service Certified Mail receipt, signed by an unidentified individual on February 13, 2015, at Complainant's address of record. Complainant, on appeal, asserted that he received the notice on April 23, 2015, and that he filed his formal complaint on May 1, 2015.
In its final decision, the Agency did not advise Complainant that it was relying on the doctrine of constructive receipt. Rather, the Agency merely asserted that the record reflects that Complainant received the Notice on February 13, 2015. Therefore, Complainant was not provided with the opportunity to demonstrate on appeal that the unidentified individual who signed the Notice at his address of record was not a family member or member of his household of suitable age and discretion.
The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. 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 becomes final, 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 (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 13, 2015
__________________
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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