Chu S., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 19, 2016

0120141394 (E.E.O.C. Feb. 19, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Chu S.,
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 0120141394

Agency No. 4F900025413

DECISION

Complainant filed an appeal with this Commission from the Agency's final decision dated
November 1, 2013, dismissing his complaint of unlawful employment discrimination alleging
violations of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et
seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §
621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. §
1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final order.

BACKGROUND

During the period at issue, Complainant was suspended from duty as a Letter Carrier and, after
returning to duty, worked as a Clerk at the Agency’s Customer Care Center in Los Angeles,
California. On September 27, 2013, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination based on age (43), disability and in retaliation for prior
protected EEO activity when:

1. she was placed off work due to the National Reassessment Process and from this time
period through her return to work on February 11, 2013, she was denied
compensation for lost benefits and salaries that she would have been entitled to if she
had been kept actively employed;
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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2. she was changed from the Carrier to the Clerk craft when she was reassigned to the
Los Angeles Customer Call Center; and

3. while she was at the Call Center, certain of Complainant’s leave requests were
denied.

In its final decision dated November 1, 2013, the Agency dismissed the formal complaint on the
ground, inter alia, that it was untimely filed. The instant appeal followed.

ANALYSIS AND FINDINGS

We find that the Agency properly dismissed Complainant's complaint on the grounds that it was
untimely filed. EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written
complaint with an appropriate agency official within 15 calendar days after the date of receipt of
the notice of the right to file a formal complaint. EEOC Regulation 29 C.F.R. § 1614.107(a)(2)
provides that the agency shall dismiss a complaint that fails to comply with the applicable time
limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time
limits in accordance with § 1614.604(c).

The record reflects that a Notice of Right to File Individual Complaint (Notice) was delivered to
Complainant on September 7, 2013. The Notice stated: “you have the right to file a formal
complaint within 15 calendar days of the date you received this notice." Pursuant to this notice,
the complaint had to be filed on or before Monday, September 23, 2013, the first business day
after the expiration of the 15-day period. The complaint received by the Agency from Complaint
was postmarked September 27, 2013, indicating that it was mailed 4 days after the filing
deadline. Complainant has not presented sufficient justification for tolling the applicable time
period. Indeed, in her appeal statement, Complainant fails to address the issue of timeliness. We
find that the Agency correctly concluded that the complaint was untimely filed.

CONCLUSION

Based on the foregoing, the Agency’s final order of dismissal 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:

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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

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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

February 19, 2016
Date