U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jayna A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120162563 Agency No. 1J-631-0029-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated July 28, 2016, dismissing a formal 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 During the period at issue, Complainant worked as an Operations Support Specialist at the Agency's St. Louis Processing and Distribution Center in St. Louis, Missouri. On March 24, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On June 11, 2016, the Agency mailed Complainant a Notice of Right to File an Individual Complaint of Discrimination (hereinafter referred to as "Notice"). The Notice informed Complainant that she had fifteen days from the date of receipt of the Notice in which to timely file a formal complaint. On June 20, 2016, Complainant attempted to file d a formal complaint alleging that the Agency subjected her to discrimination on the bases of race and age.. On July 9, 2016, Complainant's mailed formal complaint was returned to her with a notification of "No Such Number". On July 12, 2016, Complainant re-mailed the formal complaint, along with a copy of the returned envelope. On July 28, 2016, the Agency issued the instant final decision The Agency determined that Complainant received the Notice on June 11, 2016, and that she had fifteen days in which to timely file her complaint, but that she did not file the formal complaint until July 12, 2016. Therein, the Agency dismissed the formal complaint on the grounds that it was not timely filed, pursuant to 29 C.F.R. § 1614.106(b). The instant appeal followed. On appeal, Complainant contends that her formal complaint was timely filed. Complainant contends that she mailed the formal complaint on June 12, 2016, and that it was returned to her home mailbox on July 9, 2016, with the reason identified as follows: "No Such Number". Complainant contends that she sought out an EEO ADR [Alternate Dispute Resolution] employee at the Gateway District and showed her the returned envelope and inquired if someone should be contacted regarding this matter, because she did not want the timeliness of the filing of her formal complaint as a potential issue. Complainant states that the employee with whom she had spoken, told Complainant it was not necessary, and just to mail a copy of the return notice along with the formal complaint. Complainant contends that she followed this advice and re-mailed the package on July 12, 2016. ANALYSIS AND FINDINGS 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. Complainant acknowledged receipt of the Notice and was aware of the fifteen-day time frame for timely filing a formal complaint. Based on the record, Complainant had until June 27, 2016 in order to timely file her formal complaint. On appeal, Complainant contends that she timely mailed her formal complaint, and provides a copy of the addressed envelope with a postmark stamp of June 20, 20162, as well as a printout of the United States Postal Service (USPS) Tracking Intranet showcasing the various relevant dates for her package. The USPS Tracking printout, along with the package, indicates that despite writing the correct mailing address, Complainant's package was returned to her on July 9, 2016 with a message "No Such Number". Complainant was concerned about the timeliness of her formal complaint and contacted an EEO ADR employee, who suggested that she mail a copy of the returned envelope along with the formal complaint. Complainant did so on July 12, 2016. The record is clear that Complainant acted diligently and mailed the formal complaint within 15 days receipt of the Notice. Despite providing documentation of the delay, the Agency nonetheless took the July 12, 2016 date as the date of the formal complaint, finding the formal complaint untimely filed. In determining Complainant's timeliness, we consider in particular Complainant's good faith effort to timely file a formal complaint, that her formal complaint was returned to her despite writing the correct mailing address, and the short amount of time which elapsed between the expiration of the fifteen-day limitation period and the Agency's eventual receipt of the formal complaint. Given these particular circumstances, we determine that there is sufficient justification for the actual, but not purposeful, delay in the filing of the formal complaint. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E1016) 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 was issued. 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 was issued, 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 Carlton M. Hadden, Director Office of Federal Operations October 25, 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 It appears that Complainant unintentionally wrote June 12, 2016 when the date was actually June 20, 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162563 2 0120162563