0120090018
01-08-2009
Ivory Crawford, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ivory Crawford,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090018
Agency No. 4J-606-0089-08
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated August 25, 2008, dismissing his formal 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
On August 16, 2006, complainant filed a formal EEO complaint claiming
that he was subjected to discrimination based on his disability and age.
In its August 25, 2008 final decision, the agency dismissed complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it
was untimely filed. The agency determined that complainant received the
Notice of Right to File a Discrimination Complaint (hereinafter "Notice")
on June 20, 2008, but that complainant waited more than fifteen days to
file the formal complaint.
On appeal, complainant disputes that his formal complaint was filed on
August 16, 2008. Specifically, complainant states "I am sending a copy of
my delivery confirmation receipt dated 4/3/08 and received on 4/7/08."
In response, the agency argues that it received complainant's PS Form
2564-A "Information for Pre-Complaint Counseling" on April 7, 2008,
and not his formal complaint on that date. The agency further argues
that a review of the record reflects that the Notice was received by
complainant on June 20, 2008 via signature confirmation number 2306
1590 0000 9031 7751. The agency argues that the envelope containing
complainant's complaint bears a legible postmark of August 16, 2008,
which was approximately 40 days after the last day of the filing period
(July 7, 2008). Furthermore, the agency argues that complainant was
placed on notice that he was required to file the instant complaint within
15 days from the date of receipt or it could be subject to dismissal in
accordance with 29 C.F.R. � 1614.107(a)(2).
The record contains a copy of signature confirmation item number 2305 1590
000 9031 7751. Therein, complainant signed the confirmation acknowledging
that he received the Notice on June 20, 2008.
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 the notice of the right to do so.
Upon review, the Commission notes that the record reflects that
complainant received the notice of right to file a formal complaint on
June 20, 2008. Although the notice indicated that complainant had to
file a formal complaint within fifteen (15) calendar days of its receipt,
complainant did not file his formal complaint until August 16, 2008,
which is beyond the limitation period. On appeal, complainant has not
offered adequate justification to warrant an extension of the time limit
for filing the complaint.
The agency's final decision dismissing complainant's complaint on the
grounds that it was untimely filed is AFFIRMED.
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 77960,
Washington, D.C. 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 (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 (Z1008)
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
January 8, 2009
__________________
Date
2
0120090018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120090018