U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gena C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120152816 Agency No. 4K280001815 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 13, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant alleged that she had been denied employment at an Agency facility in Charlotte, North Carolina. On December 11, 2014, Complainant contacted an EEO Counselor. During EEO counseling, Complainant alleged that she was not hired for any of the positions for which she had applied, most recently on October 10, 2014, November 5, 2014, November 8, 2014 and December 6, 2014. Informal efforts to resolve her concerns were unsuccessful. On July 14, 2015, Complainant filed the instant formal complaint alleging that the Agency subjected her to discrimination on the bases of age and in reprisal for prior protected EEO activity. On August 13, 2015, the Agency issued the instant final decision dismissing the formal complaint for failure to file a timely formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that, on January 9, 2015, the Notice of Right to File an Individual Complaint of Discrimination (Notice) was sent with Signature confirmation to Complainant's address of record. The Agency stated that the Track and Confirm record demonstrated that the letter was delivered and signed for on January 12, 2015. Based on this date, Complainant had 15 days in which to file her formal complaint. However, the Agency found that Complainant did not file a formal complaint until July 14, 2015, 183 days after the last day to timely file her complaint. Additionally, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant's allegation was too vague and lacked specificity. The instant appeal followed. ANALYSIS AND FINDINGS Untimely Filing of the Formal Complaint EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to comply with the 15-day time limit contained in 29 C.F.R. § 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. § 1614.604(c). Under 29 C.F.R. § 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling. Here, the Agency dismissed Complainant's complaint on the grounds that it was untimely filed. The Agency determined that Complainant received the Notice of right to file a complaint on January 12, 2015, but that Complainant did not file her formal complaint until July 14, 2015. The Agency determined that Complainant received the Notice on January 12, 2015 because it was signed for at Complainant's address of record. When a certified U.S. Postal 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, Pazinick v. United States Postal Service, EEOC Request No. 05930337 (September 10, 1993); Dimase v. United States Postal Service, EEOC Request No. 0120130634 (Apr. 12, 2013). The presumption, however, is rebuttable. The Commission has further held that equity demands that a complainant be provided with adequate notice when the presumption of constructive receipt is relied on the dismissal for untimeliness to provide her with a full and fair opportunity to rebut it. See Fontanella v. United states 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." Id. In the instant matter, the record contains a copy of a certified return receipt for the Notice, signed on January 12, 2015 by an individual identified as a party other than Complainant. In its final decision, the Agency did not advise Complainant that it was relying on the doctrine of constructive receipt. Rather, the Agency merely asserted that the record reflects without further elaboration, that Complainant received the Notice on January 12, 2015. Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a) The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In its final decision, the Agency distilled the matters raised in Complainant's informal and formal complaint to a single allegation. We find, however, that a fair reading of Complainant's complaint shows it is not comprised exclusively of this single allegation (her reference to "let's go to court"), but instead addresses a variety of denied employment opportunities from at least October through December 2014. Accordingly, based on a thorough review of the record, we conclude that the dismissal on the above two grounds was improper. CONCLUSION We REVERSE the Agency's final decision dismissing the formal complaint, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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 December 23, 2015 __________________ Date 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 0120152816 2 0120152816