0120070286
06-19-2008
Anthony Lump, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anthony Lump,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070286
Agency No. 1J-609-0003-06
Hearing No. 440-2006-00077X
DISMISSAL OF APPEAL
In his complaint, complainant alleged that the agency had discriminated
against him on the basis of his race (White) when: (1) on October 14,
2005, he was issued a Letter of Warning (LOW) for failure to maintain
a regular work schedule; and (2) on November 4, 2005, complainant was
issued a Notice of Suspension for 7 Days for conduct unbecoming an agency
employee.
A review of the decision reveals that the agency properly advised
complainant that he had 30 calendar days from receipt of its decision
to file an appeal with the Commission. Complainant's Notice of Appeal
reveals that complainant received the agency decision on September 8,
2006. Therefore, in order to be considered timely, complainant had to
file an appeal no later than Tuesday, October 10, 2006, the first business
day following the thirtieth calendar day from complainant's receipt of
the decision. The decision reveals also that complainant was properly
informed of the correct address where his appeal was to be mailed.
Complainant apparently filed his Notice of Appeal with the agency and
not with the Commission. The record reveals that by cover letter, dated
October 13, 2006, the agency forwarded complainant's Notice of Appeal
to the Commission and also sent a copy of its letter to complainant.
Complainant's Notice of Appeal, which he had sent to the agency, was
postmarked October 7, 2006, and the forwarded Notice of Appeal was
received by the Commission on October 19, 2006. The Commission has
previously held that when provided with the proper address, filing at
the wrong address does not constitute a proper filing. See Pacheco
v. United States Postal Service, EEOC Request No. 05930700 (September
10, 1993) (appeal untimely when sent to wrong address despite receipt
of proper instructions). Filing with the agency does not constitute a
valid filing. Complainant has not offered justification for an extension
of the applicable time limit for filing his appeal and we do not construe
complainant's attempt to file his appeal with the agency as constituting
a timely filing of the appeal.
Pursuant to 29 C.F.R. � 1614.403(c), complainant's appeal is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. 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 (S0408)
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 (Z0408)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time in
which to file a civil action. Both the request and the civil action must
be filed within the time limits as stated in the paragraph above ("Right
to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 19, 2008
__________________
Date
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0120070286
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070286