0120180844
03-23-2018
Michal G,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Michal G,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120180844
Agency No. 1B072007417
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 19, 2017, dismissal of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator ("TTO") at the Dominick V. Daniels Processing and Distribution Center in Kearny, New Jersey.
On December 1, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Latino), national origin (Hispanic, Columbian), and reprisal for engaging in protected EEO activity related to the instant complaint when:
1. On August 21, 2017, he was issued a Notice of Removal for "Unsafe Act - Failure to Operate Assigned Postal Vehicle in a Safe Manner;"
2. On August 26, 2017, his supervisor made inappropriate comments to him in front of co-workers.
3. On unspecified date(s), he was required to be re-certified.
On or around August 19, 2017, Complainant struck a legally parked Postal Vehicle as he was backing his assigned tractor trailer against a loading dock. Complainant's supervisor, the Supervisor, Transportation Maintenance (Egyptian) ("S1") responded to the scene by taking photos and notes. S1 noted that Complainant broke the driver's side fender mirror on his assigned tractor trailer. According to S1, there were no environmental factors that would have caused Complainant to hit the parked vehicle. On August 21, 2017, S1 issued Complainant the Notice of Removal. In addition to the instant complaint, Complainant filed a grievance contesting his proposed removal, which was denied after reaching Step 2. See Agency No. 515VD 1767096, Complainant alleges that one of his coworkers, who, like S1, is also Egyptian, was not required to obtain recertification after he got into an accident that resulted in a broken mud flap, torn front bumper and side mirror.
On August 26, 2017, another supervisor informed S1 that the tractor Complainant had been assigned when he hit the postal vehicle had a broken emergency air line and had to be taken out of service. S1 asked Complainant about the air line, and Complainant denied breaking it, alleging that it broke due to wear and tear. S1 did not issue Complainant discipline for the broken line, and asked several other questions about the tractor. S1 does not characterize the encounter as an "altercation." However, Complainant recounts that S1 "berated" him in front of his coworkers, "yelling and screaming in [Complainant's] face," and allegedly accusing Complainant of breaking the air line. Complainant also describes how a colleague had to call an ambulance to take him to a hospital because of the alleged verbal altercation with S1, when the stress of the conversation caused his blood pressure to spike.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in �� 1614.105, 1614.106, and 1614.204(c). Under 29 C.F.R. � 1614.106(b) the filing of a written complaint with an appropriate agency official must occur within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint.
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 Defense, EEOC Request No. 05920506 (Aug. 25, 1992). In instances of untimely filing, the Agency must not only demonstrate that the complainant received Notice, but that the Notice clearly informed the complainant of the 15 day deadline to file. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995).
It is undisputed that Complainant was on notice of the 15 day filing period. Although Complainant denies receiving the Notice until November 17, 2017, the Agency provides signed documentation of receipt dated Wednesday November 15, 2017. Specifically, the Agency's signature confirmation was signed with Complainant's last name, and the digits and first letter of the street of Complainant's address of record.
The Commission has held that receipt of a document at a complainant's correct address, i.e., their address of record, by a member of the complainant's family or household of suitable age and discretion creates a rebuttable presumption of constructive receipt. See Woods v. Dep't of Veterans Affairs, 01A44731 (Nov. 24, 2004), Doty v. Dep't of the Treasury, EEOC Appeal No. 01A21779 (May 3, 2002) citing Fontanella v. Gen. Serv. Admin., EEOC Request No. 05940131 (April 10, 1995). On appeal, Complainant only disputes that the signature is his, but fails to rebut the presumption by showing proof that the person who signed for the document was not a member of the complainant's household or family of suitable age and discretion.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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
March 23, 2018
__________________
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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