[Redacted], Kylee C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionFeb 24, 2022Appeal No. 2022000772 (E.E.O.C. Feb. 24, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kylee C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000772 Agency No. 1C631004621 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's October 20, 2021 dismissal of her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler Assistant, PS-4, at the Agency’s International Bulk Mail Center in Kearny, New Jersey. On October 9, 2021, Complainant filed a formal EEO complaint alleging discrimination by the Agency on the bases of race (African American) and color (darker skin tone) when: 1. From March 2021, and ongoing, her supervisor treated her differently than employees with lighter skin, by making her late arrivals and absences as “AWOL,” and subjecting her to a hostile work environment/ harassment by speaking to her in a very aggressive tone, yelling at her, and accusing her of misconduct committed by a different dark-skinned employee (arguing with 204B supervisor); and, 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. 2022000772 2 2. On May 27, 2021, her employment was terminated during her probationary period, based on a false accusation that she was riding a hand jack. The Agency dismissed the matter due to the untimely filing of the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2). The instant appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. §1614.107(a)(2) provides that an agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.106 unless the agency extends the time limits in accordance with §1614.604(c). Pursuant to 29 C.F.R. §1614.106(b) a written EEO complaint must be filed with the agency that allegedly discriminated against the complainant within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint (“Notice”) required under 29 C.F.R. §1614.105. A complaint is deemed timely if it is received or postmarked before the expiration of the filing period, or in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. §1614.604(b). The record supports a finding that Complainant received the Notice on September 16, 2021, but did not file her formal complaint until October 9, 2021, beyond the 15-day limitation period. The Agency provided tracking and delivery information along with signed a confirmation of receipt, for the street address Complainant provided as her “address of record” during her initial EEO counseling contact. Although the signature on the confirmation does not appear to be Complainant’s, the last name appears the same. Complainant does not rebut that the individual who signed the confirmation of receipt was “a member of her family or household of suitable age and discretion.”2 The Notice itself clearly informed Complainant of the 15-day filing deadline, as did the enclosed formal complaint form. On appeal, Complainant submitted a copy of an energy bill, to establish that her residential address changed no later than August 17, 2021, before the Agency issued the Notice. However, Complainant provided no evidence that she notified the Agency of the change,3 so, for purposes 2 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 member of suitable age and discretion creates a rebuttable presumption of constructive receipt. Fontanella v. Gen. Servs. Admin., EEOC Request No. 0519940131 (Apr. 10, 1995), see also, e.g. Chavez v. United States Postal Serv., EEOC Request No. 05A01176 (Oct. 9, 2002). 3 We have long held that a complainant has a duty to apprize the agency of address changes and other circumstances that may affect the processing of EEO complaints. Reinbold v. United States Postal Serv., EEOC Appeal No. 0120050087 (Feb. 3, 2005). 2022000772 3 of issuing the Notice, Complainant’s “correct address” was the address of record she provided during counseling in June 2021. Complainant is charged with constructive knowledge of the Notice as of the date it was delivered to her address of record, which makes the deadline to file her formal complaint to be October 1, 2021. Complainant dated her signed complaint form and Notice on September 28, 2021, yet she did not mail the documents until October 9, 2021. Complainant has not offered sufficient justification for the delay. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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 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). 2022000772 4 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. 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 February 24, 2022 Date Copy with citationCopy as parenthetical citation