0120150609
03-17-2016
Carmen V.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Carmen V.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120150609
Agency No. 1B-106-0010-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 20, 2014, 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 Mail Handler at the Agency's Westchester Processing and Distribution Center in White Plains, New York.
On September 29, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, national origin, age, and in reprisal for prior EEO activity.
On October 20, 2014, the Agency dismissed issued the instant final decision. Therein, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency found that a Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") dated August 14, 2014, was delivered to Complainant's address of record on August 15, 2014. The Notice notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until September 29, 2014, to file his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
Complainant, on appeal, argues that his complaint was untimely filed "because I had a panic and I send wrong address. It means my case never went formal [complaint]. I had a feeling so upset everytime I think about this happened on 5-6-2013, my heart has a permanent scar. Even I don't want to think about it I try to let go but I see them every day. I still feel stronger feeling. Please this problem must be corrected."
The instant appeal followed.
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.
In the instant case, the record reveals that Complainant received the Notice at his address of record on August 15, 2014. The Notice clearly stated that, should Complainant wish to file a complaint of discrimination, the complaint should be mailed to the Agency's EEO office (at the address provided) within 15 days of the date on which he received the Notice. However, Complainant instead mailed his complaint to the Commission's Office of Federal Operations (OFO) on August 30, 2014.
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. U.S. Postal Service, EEOC Request No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions); Jones-Sylvester v. U.S. Postal Service, EEOC Appeal No. 0120093789 (March 10, 2010) (formal complaint untimely when sent to wrong address despite receipt of proper instructions).
There is no evidence that Complainant filed his formal complaint with the Agency at any time before the Agency's receipt of the formal complaint from OFO. Accordingly, we find that Complainant did not file his formal complaint with the Agency until September 29, 2014. The Agency did not receive the complaint until September 29, 2014, days beyond the filing period. On appeal, Complainant has not presented adequate justification for extending the limitation period beyond fifteen days. Therefore, we find that the Agency properly dismissed the complaint.
The Agency's final decision to dismiss the formal complaint on the grounds of untimely filing is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 (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
March 17, 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.
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