One mistake, and you may lose everything
The issue of “delivery,” “notice,” “timely notice,” “timely delivery,” or any of it’s variants sometimes surfaces in administrative litigation such as grievances, disciplinary actions, adverse actions, EEO complaints, MSPB appeals, arbitration, etc… As we instruct our both our clients and agency representatives, while it is largely impossible to prove delivery without a recipient signature, there are means you can use to increase your chances of proving delivery and unequivocally linking documents to delivery.
A Key Case Concerning Delivery of Notices/Documents
In Morgan v. Department of Veterans Affairs, 108 LRP 7740 , EEOC No. 0120080380 (EEOC OFO 2008), a tracking slip showing a notice of right to file was left at a complainant’s doorstep. However, it was not conclusive evidence the complainant actually received the notice on that day. Also in Morgan, the EEOC concluded hat there was insufficient evidence the complainant received the notice on the day of delivery claimed by the agency, especially in light of his testimony that it was left in an obscure area outside his home. It is important to note that conversely, the same analysis could be applied to not just an employee’s receipt, but agency receipt as well.
The “Mailbox Rule”
Arising from Worker’s Compensation Regulations under Title 20, the Employees’ Compensation Appeals has used the “mailbox rule” as a factor in determining whether notices were sent or received in a timely fashion. This rule provides that if a notice or letter is properly addressed and mailed, a presumption exists the item in question arrived at the mailing address in “due course.” This presumption of receipt under the mailbox rule applies to both employees and the agency. The “mailbox rule” is often applied by arbitrators when issues of delivery or receipt are raised whereas quasi-judicial bodies such as the MSPB and FLRA look for more definitive proof of delivery/receipt.
So, What Can You Do?
Issues of proof of delivery or receipt will ultimately be decided by the third-party in which the matter is raised. Therefore, the issue becomes one of reducing associated risk, for all parties. Therefore, you should always require a signature release. We also recommend linking the document/notice in question to a specific tracking number by embedding the tracking number in the document, a practice not normally done even by agencies. The tracking number serves as a unique ID indisputably associating a delivery date and proof of delivery forever to a specific document.
Times Are Changing
With the increasing permeation of electronic solutions such as “e-portals” in administrative federal personnel litigation, issues of having to prove delivery of hardcopy documents will significantly decrease in the near future.
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