[Redacted], Allene R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2021003306 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Allene R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003306 Agency No. 4F-900-0315-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 25, 2021, 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. BACKGROUND On a date not identified in the record, Complainant was hired as a City Carrier Assistant at the Agency’s Inglewood Post Office in Inglewood, California, subject to a 90-day probationary period. On March 11, 2021, Complainant filed a formal EEO complaint alleging that she was subjected to discriminated against based on sex, color and in reprisal for prior protected EEO activity when: 1. beginning on or about August 10, 2020, she was harassed by management and was not provided an employee badge or copies of her PS Form 3996s; 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. 2021003306 2 2. beginning on or about August 10, 2020, her request for a union representative was not granted; and 3. on September 18, 2020, she was issued a Notice of Separation during her probationary period. In its March 25, 2021 final decision, the Agency dismissed the formal complaint in its entirety, pursuant to 29 C.F.R. § 1614.107(a)(2), for being untimely filed. The Agency reasoned that Complainant received the Notice of Final Interview and Right to File a Formal Complaint on December 21, 2020. The Agency found that on March 11, 2021, Complainant filed the formal complaint, outside of the applicable time period. The Agency also dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Regarding claim 2, the Agency stated that it was a collateral attack on the proceedings of another forum, specifically the negotiated grievance procedure. 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. The Agency issued Complainant a notice of right to file a formal complaint (“the Notice”) in December 2020 by U.S. mail with signature confirmation. The record contains relevant Postal Service tracking information that shows that the Notice was delivered to Complainant’s address of record on December 21, 2020. However, the signature on the Postal Service form acknowledging receipt of the Notice on this date is illegible. It is undisputed that Complainant filed her formal complaint on March 11, 2021, beyond the 15-day limitation period if she received the Notice on December 21, 2020. On appeal, Complainant seems to assert she did not, in fact, receive the Notice in December 2020. According to Complainant, on December 18, 2020, she abruptly left a shared home where she had resided due to her fears of crime in the neighborhood. Complainant states that because of this “emergency relocation,” she missed receipt of the Notice on December 21, 2020, and believes it was accepted by someone else at the home. Upon Complainant’s move to Long Beach, California, sometime in February 2021, Complainant contacted an Agency EEO official about her case and appears to have requested another copy of the notice of right to file. The record contains a letter from an EEO official, dated February 18, 2021, sending a “Duplicate Notice of Right to File,” still dated December 16, 2020, and sent again by mail with signature confirmation. 2021003306 3 Postal Service tracking information of record shows the Notice was delivered to Complainant’s new address in Long Beach, California, on February 25, 2021. Complainant does not dispute this delivery date. Based on this receipt date, Complainant appears to argue that her March 11, 2021 complaint filing was timely made within the relevant 15-day period. The Commission has long held that there a rebuttable presumption of constructive receipt when an individual at the complainant's correct address signs for the document. See Fontanella v. Gen. Serv. Admin., EEOC Request No. 05940131 (April 10, 1995). Here, it is undisputed that the first Notice was received and signed for at Complainant’s address of record on December 21, 2020. Complainant asserts that she had moved from this residence by that time and believes the package containing the Notice was signed for by another resident of the home. However, beyond her bare assertions, she has provided no evidence to support her claims, including her assertion that she was no longer living at the address when the Notice was received. EEOC regulations require complainants to keep their processing agency informed of their current address. See 29 C.F.R. § 1614.105(b)(1). It appears that although Complainant alleges that she moved in mid-December 2020, she did not inform the Agency of her new address until mid- February 2021. Based on the evidence of record, we conclude that Complainant has failed to provide adequate justification to excuse her significant delay in the filing of her formal complaint. See 29 C.F.R. § 1614.604(c). CONCLUSION The Agency’s dismissal of the complaint for untimely filing is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2021003306 4 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021003306 5 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 September 30, 2021 Date