[Redacted], Danita P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020000438 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danita P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2020000438 Agency No. 4K220004419 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an August 20, 2019, Final Agency Decision (“FAD”) concerning an equal employment opportunity (“EEO”) complaint alleging 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.2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, 02/E, at the Memorial Annex and Park Fairfax Post Office in Alexandria, Virginia. On March 22, 2019, Complainant filed a Formal EEO Complaint alleging that she experienced discrimination by the Agency on the basis of sex (female) when: 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. 2 The FAD framed the allegations in Claims 2-5 as alleging a violation of Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”), 42 U.S.C. § 2000ff et seq. However, a fair reading of Complainant’s formal complaint and the investigative record establishes that Complainant alleged discrimination on the basis of sex, and not genetic information. 2020000438 2 1. Since March 2018, her Manager (“M1”), a Manager, Customer Service, EAS-21, has subjected her to ongoing sexual harassment, including, but not limited to when he offered to take her out, invited her over to his house, made sexual gestures and comments towards her, texted her naked pictures, and caused her to be the subject of rumors that she performed oral sex on him. 2. On January 17, 2019, M1 issued her a Letter of Warning. 3. On January 17, 2019, M1 forced her to take her break on the street. 4. On January 15, 2019, M1 denied her request for a gas card. 5. On January 15, 2019, M1 ordered her off the clock. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). When it asserted Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The FAD concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.108(f) provides in relevant part that an agency shall provide the complainant with a copy of the investigative file, and shall notify the complainant, that within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an Administrative Judge or may request an immediate final decision pursuant to § 1614.110 from the agency with which the complaint was filed. To establish proof of receipt, an agency must provide evidence of actual receipt, such as a delivery confirmation signed by the complainant. The Commission has held that receipt of a document at a complainant's 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 Fontanella v. Gen. Serv. Admin., EEOC Request No. 05940131 (April 10, 1995). Simply informing a complainant that a document had been mailed to them will not establish constructive receipt. See e.g. Complainant v. Dep’t of Justice, EEOC Appeal No. 0120150239 (Mar. 18, 2015) (email correspondence between the complainant and EEO Counselor after a notice was sent to the complainant by mail was not sufficient evidence of constructive receipt on the date of the first attempted delivery, where the evidence showed that actual receipt occurred when it was successfully delivered, two weeks later). Complainants have a duty to apprize agencies of address changes and other circumstances that may affect the processing of EEO complaints. See Reinbold v. United States Postal Serv., EEOC Appeal No. 0120050087 (Feb. 3, 2005). 2020000438 3 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)). Moreover, it is the Commission’s well-established position that the Agency has the burden of providing evidence and/or proof to support its final decisions. Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (Jan. 14, 1993); see also Gens v. Dep’t of Def., EEOC Request No. 05910837 (Jan. 31, 1992). On appeal, Complainant contests the Agency’s FAD, arguing that it failed to properly provide her with notice of her right to request a hearing. According to Complainant, the Agency notified her on June 11, 2019, that it mailed the hearing election form to her and her non-attorney representative, and they would have 30 days to reply. However, she asserts neither received it. She also recounts that on June 28, 2019, the Agency pulled her and her non-attorney representative, as well as all of her witnesses for this complaint, off the street for an interview, and that this was the last time she was interviewed about the matter. The record contains a copy of the Transmittal of Investigative File letter, the Request for Hearing form, and the ROI. The record does not, however, contain evidence of actual or constructive receipt by Complainant. In fact, the record contains a photocopy of an envelope addressed to Complainant at her address of record, but labeled, “Return to Sender, Unable to Forward,” and time stamped as “received” by the Agency on June 26, 2019.3 Although there is a “signature confirmation” sticker with a tracking number on the envelope, there is no accompanying documentation evincing delivery and receipt at Complainant’s address of record. There is also no indication that Complainant failed to apprize the Agency of a change of address or other circumstances where she would be unavailable to accept a delivery. As the Agency failed to meet its evidentiary burden to show that Complainant received the ROI and notice of her right to request a hearing, which would have triggered the 30-day time limit to request a hearing, we will not address the merits of Complainant’s complaint here. CONCLUSION Accordingly, the Agency’s final decision is VACATED, and Complainant’s complaint is REMANDED for further processing in accordance with the Order below. 3 The Agency provides a copy of a similar envelope addressed to Complainant’s non-attorney representative but sent “care of” Complainant, at her address of record. Complainant provided a separate address of record for her representative multiple times in the record, but there is no evidence that the Agency sent a copy to that address. As Complainant’s representative is not an attorney, his date of receipt will not impact this decision. 2020000438 4 ORDER Within fifteen (15) calendar days of the date on this decision, the Agency shall issue to Complainant, in accordance with 29 C.F.R. § 1614.108(f), a copy of the report of investigation on her complaint and notice of her right to request a hearing before an EEOC Administrative Judge or an immediate Agency decision within 30 days of her receipt of the report of investigation. The Agency shall transmit the notice and report of investigation by method that provides proof of Complainant’s receipt. If Complainant elects not to request a hearing, or fails to respond to the notice in a timely manner, the Agency shall issue its final decision pursuant to 29 C.F.R. § 1614.110(b). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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: 2020000438 5 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. 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 (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. 2020000438 6 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 June 3, 2021 Date