U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Beth G,1 Complainant, v. Elaine L. Chao, Secretary, Department of Transportation (Federal Aviation Administration), Agency. Appeal No. 0120171429 Agency No. 2016-27082-FAA-06 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 16, 2017, 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 a Program Support Specialist for the Agency at its Program Operations Group in Anchorage, Alaska. On January 12, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, age, and in reprisal for prior protected activity The Agency dismissed the formal complaint on the grounds that the formal complaint was not timely filed, pursuant to 29 C.F.R. § 1614.107(a)(2). According to the Agency, its records showed that Complainant received the Agency's notice of the right to file a formal complaint (Notice) at her home address on December 22, 2016. The Agency states that Complainant did not file her formal discrimination complaint until January 13, 2017, which was beyond the regulatory 15-day time limit. The instant appeal followed. On appeal, neither Complainant nor her representative submitted a brief. ANALYSIS AND FINDINGS When there is an issue of untimeliness, the agency "always bears the burden of sufficient information to support a reasoned determination as to timeliness." See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Def., 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 decision. See also Gens v. Dep't of Def., EEOC Request No. 05910837 (Jan. 31, 1992). Receipt of a document at a complainant's correct address by a member of a complainant's family or household of suitable age and discretion creates a rebuttable presumption of constructive receipt of the document by complainant. Fontanella v. Gen. Servs. Admin., EEOC Request No. 05940131 (Apr. 10, 1995) (citing Pazinick v. U.S. Postal Serv., EEOC Request No. 05930337 (Sep. 10, 1993) and Knowles v. Dep't of Def., EEOC Request No. 05920956 (Mar. 18, 1993). We have also held that equity demands that the Agency provide Complainant with adequate notice of its reliance on the constructive receipt presumption in dismissing for untimeliness so that Complainant has a full and fair opportunity to rebut it. See Fontanella supra. In the instant matter, the record contains a certified tracking printout that states the Notice was "delivered, left with individual," at Complainant's residence on December 22, 2016. However, it is not clear whether that individual who received this certified mailing was Complainant or a member of her household who was of suitable age or discretion. As significantly, we note that the record contains contrary information regarding the date of receipt of this Notice. Specifically, the record includes a document with the subject "notice of right to file a discrimination complaint." The EEO Counselor dated this document on December 19, 2016. On the other hand, Complainant signed acknowledgment of receipt of the Notice and dated her signature December 31, 2016, a later date than either the date identified by the EEO Counselor, or the December 22, 2016 delivery date discussed above. The Agency does not address this inconsistency. Consequently, we find a fair reading of the record reflect that the evidence show that Complainant did not receive the notice of right to file a discrimination complaint before December 31, 2016. Accordingly, the formal complaint of January 13, 2017, was indeed timely filed for purposes of 29 C.F.R §§ 1614.106 and 1614.107(a)(2). CONCLUSION We find that the Agency improperly dismissed Complainant's formal complaint on the grounds that it was untimely filed. Therefore, we REVERSE the Agency's final decision dismissing Complainant's 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 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 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 (M0617) The Commission may, in its discretion, reconsider the decision in this case if 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 August 25, 2017 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 0120171429