0120160385
02-09-2016
Joya Y.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joya Y.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120160385
Agency No. 4F900034914
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 23, 2015, 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
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Carson Post Office in Carson, California.
On August 25, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment on the bases of race (African-American), sex (female), disability (unspecified), age (51), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. On or about March 8, 2015, she was denied a detail assignment as an Acting Supervisor;
2. On or about March 28, 2015, she was instructed to return to the Carson Post Office;
3. On March 30, 2015, she was placed in a Stand-by status and instructed to sit in the women's lounge/restroom area; and
4. On or about April 6, 2015, she was told there was no work available within her restrictions and were sent home.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
ANALYSIS AND FINDINGS
Under 29 C.F.R. �1614.107(a)(2), the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the agency grants an extension pursuant to �1614.604(c). In relevant part, 29 C.F.R. � 1614.106 provides that a complaint must be filed with the agency that allegedly discriminated against Complainant and that a formal complaint must be filed within fifteen (15) days of receiving notice of the right to do so. Complainant received the notice of right to file a formal complaint on June 29, 2015. 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 25, 2015.
On appeal, Complainant alleges that her formal complaint, which she mailed on July 2, 2016, would have been timely, but for her reliance on erroneous advice from an Agency official to send her formal complaint to the Commission instead of the Agency. She further alleges that the Commission itself prevented her from timely filing because it did not immediately inform her of her mistake in time for her to meet the fifteen day (15) time limit.
The record establishes that the Agency provided Complainant with the proper agency address and instructions for filing her formal 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 Serv., EEOC Request No. 05930700 (Sept. 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions); Meggitt v. United States Postal Serv., EEOC Appeal No. 01A40408 (Feb. 3, 2004)(above principle applied to a formal complaint that was untimely filed). On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint.
CONCLUSION
Accordingly, the agency's final decision dismissing complainant's complaint is AFFIRMED.2
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 signature
Carlton M. Hadden, Director
Office of Federal Operations
February 9, 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.
2 In its decision, the agency also dismissed the complaint because complainant did not contact the EEO counselor until July 19, 2007 which is more than 45 days after the effective date of the removal. While we do not need to rule on this issue, we note that the use of the negotiated grievance procedure does not toll the time limit for contacting an EEO Counselor. Schermerhorn v. United States Postal Serv., EEOC Request No. 05940729 (February 10, 1995).
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