0120103272
12-08-2010
Dorothy I. Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Dorothy I. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120103272
Agency No. 4J460004710
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 1, 2010, 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., Section
501 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.
BACKGROUND
Complainant contacted the EEO Office believing that she had been subjected
to unlawful discrimination. When the matter was not resolved informally,
Complainant was issued a Notice of Right to File (Notice) her formal
complaint and a letter providing her with information regarding her
claim of age discrimination and bypassing the administrative complaint
process on this basis. Complainant received the Notice on April 30, 2010.
On May 13, 2010, Complainant filed her formal complaint; however, she
filed the formal complaint with the Office of Federal Operations (OFO),
rather than the Agency's EEO Office. The formal complaint was forwarded
to the Agency on June 15, 2010.
In her complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of race (African-American), sex (female),
color (Black), disability (Ankle), age (40), and reprisal for prior
protected EEO activity under an EEO statute that was unspecified in the
record when:
1. On January 25, 2010, Complainant was taken off her route and sent
for a Fitness-For-Duty examination;
2. On February 19, 2010, Complainant was sent for a second
Fitness-For-Duty examination;
3. On February 20, 2010, Complainant was not allowed to work; and
4. On February 25, 2010, Complainant received a letter placing her in
an off-duty status.
The Agency dismissed complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency determined that the complaint was untimely filed. According to
the agency, the agency received the formal complaint in June 2010, well
beyond the 15-day period after Complainant's receipt of the Notice.
Complainant appealed through her representative stating that the
filing with OFO was in error based on her receipt of the form providing
information regarding her ADEA claim. As such, Complainant requests
that the Commission reverse the Agency's dismissal.
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.
Complainant concedes on appeal there was a "misunderstanding" as to
where she was to file the complaint. However, the Agency duly provided
Complainant the proper documents informing her of where, when, and how she
was to file her formal complaint. Despite this information, Complainant
mailed the complaint to OFO. OFO then forwarded the complaint to the
Agency on June 15, 2010. While the record reflects that Complainant
mailed the complaint to OFO within the time limit, the Agency -- the
entity responsible for processing the complaint -- did not receive
the complaint until after the 15-day time limit. The Commission has
previously affirmed the agency dismissal of formal complaints that were
wrongly filed with OFO where the complainant received a Notice indicating
the appropriate place to file the complaint. We therefore determined
that the instant formal complaint was untimely filed. See, e.g., Biggs
v. U.S. Postal Serv., EEOC Appeal No. 0120072366 (July 12, 2007);
Dones v. U.S. Postal Serv., EEOC Appeal No. 01A55037 (Dec. 22, 2005).
We further find that complainant has not presented adequate justification,
pursuant to 29 C.F.R. � 1614.604(c), for extending the filing period.
CONCLUSION
Accordingly and based on the foregoing, we AFFIRM the agency's dismissal
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
December 8, 2010
__________________
Date
2
0120103272
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120103272