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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021002335 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt B,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021002335 Agency No. 4K-200-0018-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 1, 2021, dismissing his 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clerk, PS-06, at the Agency’s Curseen/Morris Processing and Distribution Center in Washington, District of Columbia. On January 5, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination and harassment/a hostile work environment on the bases of race (Black), sex (male), color (Black), age, and reprisal for prior protected EEO activity when: 1. On September 11, 2020, Complainant asked for a copy of a handout he signed, and management did not provide him with one; 2. On November 28-29, 2020, December 19, 2020, and January 5, 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. 2021002335 2 management brought co-workers in for overtime and Complainant was not; 3. From November 28, 2020 through January 5, 2021, Complainant was denied an ACE number and PIN for computer access to the Post Office box section; 4. On December 16, 2020, management took Complainant off the holiday schedule to work while other workers were not; 5. On January 4, 2021, Complainant was instructed not to bring his wheeled portable lunch box to work; 6. On unspecified dates, Complainant was assigned the more strenuous work duties; and 7. On a date to be specified, Complainant was reassigned to the Friendship Heights Post Office. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency also noted the complaint included a claim of retaliation due to whistleblowing activities which it dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. On appeal, Complainant asserts that he was never given an initial interview and did not receive any response from the EEO Counselor. He also asserts that he did not sign for any delivery to his address. He confirms his address, which is the same address indicated on the USPS tracking records. He alleges that there were irregularities with the processing of his complaint and that the Agency improperly stated his claims. He also resubmits evidence and argument in support of the merits of his claims. The Agency has not submitted a statement or brief in response. 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 the notice of the right to do so. 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 addition, 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). The Commission previously has held that receipt of a document at a complainant's correct address by a member of Complainant's family or household of suitable age, and discretion constitutes constructive receipt by Complainant. See, e.g. Baunchand v. U.S. Postal Service, EEOC Request No. 05920389 (May 29, 1992). 2021002335 3 When a certified U.S. return receipt has been signed by an unidentified individual at the Complainant's address on a date certain to indicate delivery of an important document, the Commission has relied on a presumption of constructive receipt by Complainant on that date. See, e.g. Pazinick v. U.S. Postal Service, EEOC Request No. 05930337 (September 10, 1993). The presumption, however, is rebuttable. The Commission has held that equity demands that a complainant be provided with adequate notice when the presumption of constructive receipt is relied on the dismissal of unwillingness to provide him with a full and fair opportunity to rebut it. See generally Fontanella v. U.S. Postal Service, EEOC Request No. 05940131 (April 10, 1995). Specifically, the Commission in Fontanella stated that “when an agency elects to dismiss a complaint on timeliness grounds, relying on a certified receipt signed by an individual other than the complainant, it shall advise the complainant, in its final agency decision, of the substance of the constructive receipt doctrine and that it is relying upon that doctrine to dismiss [complainant's] complaint as untimely.” In past cases, the Commission has found an Agency's complaint dismissal improper where, without sufficient evidence that the notice was received by the complainant or an agent of the complainant, the notice was signed for by the complainant's apartment complex manager, signed at reception at the complainant's place of work, or signed by an unknown individual. See Complainant v. Small Business Administration, EEOC Appeal No. 0120122093 (November 26, 2013), Sheba Flood v. Department of Veterans Affairs, EEOC Appeal No. 0120131796 (August 28, 2013), Complainant v. Department of Homeland Security (U.S Secret Service), EEOC Appeal No. 0120132751 (January 9, 2014). Here, the record shows that the Agency sent Complainant a Notice of Right to File Formal EEO Complaint (Notice), dated November 19, 2020, advising Complainant that he had 15 days from the date of receipt of the Notice to file a formal complaint. USPS tracking records indicate that the Notice was “delivered, left with individual,” at Complainant’s address of record on November 20, 2020. The records indicate that there was a signature confirmation. Although the signature block appears to contain two handwritten marks, the signature is illegible. As noted above, Complainant denies having received the Notice. In its final decision, the Agency informed Complainant of the substance of the constructive receipt doctrine in its dismissal of his complaint. On appeal, Complainant has not indicated whose signature is on the receipt or explained how he ultimately obtained the Notice or information instructing him as to the filing of his formal complaint. Instead, he has alleged that he did not receive it and that the Agency processed his complaint improperly. Absent further explanation, we find Complainant has not rebutted the presumption of constructive notice. Therefore, we find he received the Notice on November 20, 2020 and he did not submit his formal complaint until January 5, 2021, which is beyond the 15-day filing period. Consequently, his formal complaint was untimely. 2021002335 4 Although the Agency also dismissed Complainant’s allegations of retaliation as failing to state a claim, we decline to address these alternative grounds because we find his entire complaint was untimely filed. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the instant complaint. 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). 2021002335 5 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 June 3, 2021 Date