U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ciera B.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120161197 Agency No. ATL-15-0856-SSA DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated January 22, 2016, dismissing her complaint of 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 Technical Expert at the Agency's Region 4 Field Office in Huntsville, Alabama. On July 22, 2015, Complainant contacted the EEO Counselor alleging discrimination. When the matter could not be resolved informally, on November 2, 2015, the Agency mailed Complainant a Notice of Right to File (Notice) her formal complaint. On November 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of color (Black), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On July 12, 2015, she was not selected for the position of Operations Supervisor under Vacancy Announcement SB-1404861-15-GC. 2. From August 2015 to November 2015, Complainant was subjected to harassment. 3. On November 5, 2015, Complainant received a lowered rating on her PACS Performance Appraisal. The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency indicated that it sent Complainant the Notice on November 2, 2015, by signature confirmation. The Agency stated in the final decision that the confirmation was included as an exhibit to the dismissal. The Agency indicated that the Notice was received by Complainant and the Representative on November 5, 2015. Therefore, to be timely filed, Complainant needed to file the formal complaint by November 20, 2015. However, Complainant filed her complaint on November 22, 2015, 17 days after she received the Notice. As such, the Agency determined that Complainant filed her complaint after the 15 day time limit and did not show she was incapacitated at the time. Therefore, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(2). This appeal followed. 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 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. Dep't. of the Army, EEOC Request No. 05920623 (Jan. 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. Dep't. of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). According to the Agency, the Notice informing Complainant that she had to file a formal complaint within 15 days of its receipt was mailed to Complainant on November 2, 2015 and received by her on November 5, 2015. In support of its decision, the Agency's final decision stated that the Notice was mailed via UPS. A review of the internet tracking for UPS, we find that the Notice was delivered to the "Front Door" at "NEW MARKET, AL, US". The Commission has previously held that the "generalized reference to a city and zip code" in a USPS "Track and Confirm" inquiry is insufficient to demonstrate that an agency has effectively established a date of delivery for purposes of computing time. See Lipscomb v, U.S. Postal Serv., EEOC Appeal No. 0120081267 (March 25, 2008). We find that the UPS delivery notice in the instant case is similar to the USPS "Track and Confirm." The UPS website similarly states only the city and state of delivery. As such, the Agency has not demonstrated the actual delivery date of the Notice informing Complainant of her right to file a formal complaint. Therefore, we find that the Agency's dismissal of the instant complaint as untimely filed was improper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the matter 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. 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 (M0416) 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 May 19, 2016 __________________ 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 0120161197 5 0120161197