Leroy Lavender, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.

Equal Employment Opportunity CommissionDec 8, 2011
0120113418 (E.E.O.C. Dec. 8, 2011)

0120113418

12-08-2011

Leroy Lavender, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.




Leroy Lavender,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Southeast Area),

Agency.

Appeal No. 0120113418

Agency No. 1H302002211

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated June 2, 2011, dismissing his 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. Upon review, the Commission finds that Complainant's complaint

was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to

the untimely filing of the formal complaint.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as

a Laborer Custodian at the Agency’s facility in College Park, Georgia.

On May 11, 2011, Complainant filed a formal complaint alleging that

the Agency subjected him to discrimination on the basis of reprisal for

prior protected EEO activity under Title VII of the Civil Rights Act of

1964 when:

1. on January 14, 2011, his manager attempted to assault him;

2. on an unspecified date, management released his medical information;

3. on or around January 25, 2011, management placed him on a modified

work assignment for a medical condition;

4. on March 8, 2011 he was issued a 7 day suspension which was

subsequently rescinded;

5. on or about March 22, 2011, his manager threatened him.

The Agency dismissed the complaint for failure to file a timely formal

complaint. In his appeal, Complainant states he had extenuating

circumstances in that he was denied annual leave, reasonable time to

meet with his EEO representative, and was removed improperly from duty

and work on March 31, 2011. The Commission notes that in its FAD,

the Agency instructed Complainant on how to pursue his claim that he

was denied EEO time.

ANALYSIS AND FINDINGS

The record discloses that Complainant received the notice of right

to file a formal complaint on April 23, 2011. 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 May 11, 2011, 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. A Complainant

is at all time responsible for proceeding with the complaint whether

or not he has designated a representative. 29 C.F.R. § 1614.605(e).

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

December 8, 2011

__________________

Date

2

0120113418

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120113418