U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherita V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120180359 Agency No. 1K-221-0035-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 28, 2017, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk - Automation at the Agency's USPS Distribution Plant in Merrifield, Virginia. On September 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), disability (shoulder injury), and reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when: 1. On April 23, 2017 and April 29, 2017, while on light duty, Complainant was told to put trays and labels in the automation area by her supervisor (S1), despite informing her supervisor that doing so irritated her injury. 2. On May 1, 2017, while on light duty, Complainant was sent to the APBS area to lift packages by Supervisor (S2), which was outside her medical restrictions. The Agency dismissed the complainant pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted that the Notice of the Right to File a Formal Complaint was delivered to Complainant's correct address and signed for by Complainant on August 16, 2017. Complainant filed her formal complaint on September 5, 2017, five days after the 15-day time limit. The Agency dismissed Complainant's complainant as untimely. This appeal followed. On appeal, Complainant's Representative argues that the signature that the Agency claims belongs to the Complainant acknowledging receipt of the Notice of Right to File is "not" the signature of Complainant. He argues that the signature on the receipt looks different than Complainant's signatures on her notice of appeal, formal complaint, and driver's license, all of which he submits with the appeal. 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. Based on a thorough review of the record, the Commission concludes that the dismissal, due to the untimely filing of the formal complaint, was proper. 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). 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). In the instant matter, the record includes the USPS Track and Confirm Record indicating that a Signature Confirmation No. 2315 1670 0000 8345 9996, was delivered to, and signed for by the Complainant at her address of record on August 16, 2017. The Complainant in her appeal has stated that is not her signature signifying delivery of the Notice of Right to File. 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. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). The Agency properly relied on constructive notice of delivery of the Notice of Right to File to Complainant's correct address. Further, the Agency informed Complainant of the substance of the constructive receipt doctrine in its dismissal of her complaint. Complainant was provided with the opportunity to demonstrate on appeal that the unidentified individual who signed the receipt for the Notice of Right to File at her address of record was not a family member or member of her household of suitable age and discretion. Complainant has not provided any alternative explanation for whose signature is on the receipt or how she ultimately obtained the Notice of the Right to File. Instead, Complainant has merely alleged that the signature on the receipt for the Notice of Right to File is not hers. The signature of the receipt appears to be Complainant's first initial and last name. Absent further explanation, the Complainant has not rebutted the presumption of constructive notice. 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 (M0617) 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. 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 (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 January 31, 2018 __________________ 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 0120180359 2 0120180359