0120114299
02-21-2012
Franletta H. Pinckney, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Franletta H. Pinckney,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120114299
Agency No. 1H-302-0037-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 22, 2011, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §
791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency’s North Metro P&DC facility in College Park,
Georgia.
On August 8, 2011, Complainant filed a formal complaint alleging that the
Agency subjected her to discrimination on the basis of disability (stress)
when she was not allowed to return to work after her doctor released her
to do so. The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(2), due to the untimely filing of the formal complaint.
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(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that Complainant received the notice of right to file
a formal complaint on August 30, 2010. Although the notice indicated that
Complainant had to file a formal complaint within fifteen (15) calendar
days of its receipt, Complainant did not file her formal complaint until
August 8, 2011, one year later and well beyond the limitation period.
The record indicates that Complainant initially and incorrectly filed her
formal complaint with the EEOC’s Office of Federal Operations rather
than with the Agency. The EEOC received the complaint on September 17,
2010, and later forwarded it to the Agency. The issue to be determined
is whether mistakenly filing her complaint with the EEOC rather than
the Agency constitutes a valid filing. The record establishes that the
Agency provided Complainant with the proper Agency address for filing
her complaint. 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); Meggitt v. United
States Postal Service, EEOC Appeal No. 01A40408 (February 3, 2004)(above
principle applied to a formal complaint that was untimely filed).
On appeal, Complainant has not offered any other justification to warrant
an extension of the time limit for filing the complaint.
Accordingly, the Agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
February 21, 2012
__________________
Date
2
0120114299
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114299