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

Equal Employment Opportunity Commission

Jul 8, 2021

Appeal No. 2021002500 (E.E.O.C. Jul. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Heath P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002500 Agency No. 1J-603-0057-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated March 15, 2021, dismissing a formal complaint alleging 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 Tractor Trailer Driver at the Agency’s facility in Carol Stream, Illinois. Believing that he was subjected to discrimination based on race and color, Complainant contacted an EEO Counselor. Informal efforts to resolve complainant’s concerns were unsuccessful. Subsequently, on February 22, 2021, Complainant filed a formal EEO complaint. On March 15, 2021, the Agency issued the instant final decision. The Agency dismissed the formal complaint on the grounds that it was untimely filed. The Agency determined that Complainant received his Notice of Right to File Individual Complaint (hereinafter “Notice”) on January 4, 2021, but waited forty-nine days to file an EEO complaint, on February 22, 2021. 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. 2021002500 2 Noting that the Notice was “signed for by the mail carrier in adherence to the COVID-19 delivery instructions,” the Agency relied upon the concept of constructive receipt in concluding that the complaint was filed beyond the fifteen-day time limitation. Complainant filed the instant appeal. 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 Intranet” statement stating that the Notice was delivered on “January 4, 2021 at 13:29”. Additionally, the statement included the illegible image of a “signature” and a blank line drawn in the space for “address”. In a separate document, “USPS Tracking Intranet Tracking Number Result”, delivery was shown to be made to Berwyn, Illinois, 60402. The formal complaint was not filed until well beyond the fifteen-day time limit, on February 22, 2021. On appeal, without elaboration, Complainant contends he did not receive the notice. 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, the Agency states it was that of the delivering postal carrier in accordance with COVID-19 safety protocols. Citing Pazinick v. United States Postal Service, EEOC Request No. 05930337 (Sept. 10, 1993), the Agency reasoned that the signature by the postal carrier comprised constructive receipt of the document by Complainant. In Pazinick, however, the Commission reiterated that “receipt by a member of a complainant's family or household, at the address of record, is effective receipt . . . ” (emphasis added). 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 2021002500 3 11, 1992); Robert Fischer v. Anthony M. Frank, Postmaster General, United States Postal Service, EEOC Request No. 05900389 (May 3, 1990). Here, the Agency itself explains that the signature was that of the mail carrier and not from a suitable member of Complainant’s household. On appeal, without elaboration, Complainant asserts that “…the letter carrier also signed the original EEO packet/forms and I never received them. He or she, did not leave the packet at my residence.” Complainant does not describe when or how he received the Notice. Nevertheless, a review of the Notice itself reveals that Complainant signed and dated the form on January 12, 2021. In light of this statement against interest, we find that Complainant was in receipt of the Notice on January 12, 2021. Therefore, the formal complaint needed to be filed by January 27, 2021. We find that Complainant has not presented sufficient justification for extending the fifteen-day time limit. CONCLUSION The Agency’s final decision to dismiss the formal complaint was proper and 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. 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 2021002500 4 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. 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. 2021002500 5 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 8, 2021 Date