0120093338
01-22-2010
Lucian E. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lucian E. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093338
Agency No. 4C-440-0100-09
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated July 7, 2009, 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).
During the relevant period, complainant worked as a city carrier at an
Ohio facility of the agency. He initiated EEO contact alleging that
the agency discriminated against him on the basis of reprisal for prior
protected EEO activity when it docked his annual leave inappropriately
March 11 - 16, 2009. In a letter and a Notice of Right to File Individual
Complaint (NORF), both dated May 19, 2009, an EEO Counselor informed
complainant that he completed his counseling without resolution,
and that complainant had 15 days from the date he received the NORF
to file a formal complaint or risk dismissal pursuant to 29 C.F.R. �
1614.107(a)(2).1 In a formal EEO complaint postmarked June 9, 2009,
complainant alleged that the agency retaliated against him when it
"unjustly [AWOL]ed" him.
In its July 7 final decision, the agency dismissed complainant's claim
pursuant to 29 C.F.R. � 1614.107(a)(2) for an untimely EEO complaint.
Specifically, the agency stated that a signature confirmation receipt
displays a delivery date of May 21 and complainant's signature, so the
deadline for complaint's submission was June 5. The instant appeal from
complainant followed. On appeal, complainant stated that he filed his
complaint late because he is still recovering from surgery and taking
medication that makes it difficult for him to focus and stay awake.
We find that complainant's complaint was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2). 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. All � 1614 time limits are in terms of calendar days unless
otherwise noted.
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).
Such is the case here. The agency stated that complainant received his
NORF on May 21, 2009 and filed his formal complaint four days beyond
the 15-day statutory timeframe. We find that the agency provided
documentation to satisfy its burden and support its dismissal. Further,
we conclude that complainant failed to show that he was so incapacitated
by his condition as to render him unable to file his formal EEO complaint
by June 5. Accordingly, we AFFIRM the agency's final decision dismissing
complainant's complaint.
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
January 22, 2010
__________________
Date
1 We note that the agency provided a track and confirm query sheet with
complainant's signature, indicating that the correspondence was delivered
May 21, 2009 at 10:59.
??
??
??
??
2
0120093338
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120093338