0120092611
12-04-2009
Linda Berrios, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Linda Berrios,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092611
Agency No. 1H303000909
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 6, 2009, 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. According
to the final agency decision, complainant alleged that she was subjected
to discrimination on the basis of prior protected EEO activity when she
was sent home from work on January 15, 2009.
In its final decision the agency dismissed the claim due to the
untimely filing of the formal complaint, pursuant to 29 C.F.R. �
1614.107(a)(2). The record shows that complainant's attorney's office
received the notice of right to file a formal complaint on April 1,
2009, which provided that complainant had fifteen (15) days from the
date of its receipt to file a formal complaint. The record further
shows that complainant's complaint was filed on April 17, 2009, one
day after the expiration of the 15-day limitation period permitted by
EEOC regulations.
On appeal, the agency reiterates the argument made in its final
decision. Complainant did not submit a brief in support of her appeal.
Under part 29 C.F.R. � 1614.106(b), a complaint must be filed within 15
days after receipt of the notice of the right to file a discrimination
complaint issued by the Equal Employment Opportunity (EEO) Counselor.
Where, as here, there is an issue of timeliness, "[a]n agency always bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness." Guy, v. Department of Energy, EEOC
Request No. 05930703 (January 4, 1994) (quoting Williams v. Department
of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in
Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14,
1993), the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Upon review of the record, we find that the agency has provided sufficient
evidence to show that complainant's complaint was submitted to the
agency in an untimely manner. EEOC regulations provide that when a
complainant designates an attorney as representative, all time frames
for receipt of materials shall be computed from the time of receipt
by the attorney. See 29 C.F.R. � 1614.605(d). To this end, the record
contains a delivery confirmation receipt showing that the final interview
letter and notice of right to file a formal complainant were delivered
to the office of complainant's attorney on April 1, 2009, whereupon an
individual signed for their receipt. Consequently, complainant's formal
complaint should have been filed no later than Thursday, April 16, 2009.
Complainant has not provided an explanation for the delay; consequently,
we find no justification for extending the time limitation period. See 29
C.F.R. � 1614.604(c). Therefore, after a careful review of the record,
the Commission finds that the agency properly dismissed complainant's
complaint for failure to comply with the applicable 15-day time limit.
Accordingly, it is the decision of the Commission to AFFIRM the final
agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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, 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 (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
_____12/04/09_____________
Date
2
0120092611
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092611