01a55251_r
12-01-2005
Marlene V. Cotto v. United States Postal Service
01A55251
December 1, 2005
.
Marlene V. Cotto,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A55251
Agency No. 4H-330-0179-05
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated July 20, 2005, pertaining to her EEO 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. The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
Complainant contacted the EEO office regarding claims of discrimination
based on race and sex. Informal efforts to resolve her concerns were
unsuccessful. On July 7, 2005, complainant filed the instant formal
complaint.
In its July 20, 2005 final decision, the agency dismissed complainant's
complaint on the grounds that it was untimely filed. The agency
found that complainant was mailed a Notice of Right to File Individual
Complaint (hereinafter "Notice") that complainant received on June 15,
2005. Complainant filed her formal complaint postmarked July 7, 2005,
which the agency determined was beyond the fifteen-day time limitation
for timely filing a formal EEO complaint..
On appeal, complainant contends that because her representative, a
union steward, did not receive the Notice, her complaint was timely
filed. Complainant stated that she had a reasonable belief that her
representative received a copy of the Notice, and that complainant fully
expected the representative �to inform her of the time limits.�
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a
written complaint with an appropriate agency official within fifteen
(15) calendar days after the date of receipt of the notice of the right
to file a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.605(d) provides that after the agency
has received notice of the name and address of a representative for
the complainant, all official correspondence shall be sent to the
representative, with copies to the complainant. If the representative
is an attorney, service of all official correspondence shall be made
on the attorney and the complainant, but time frames for receipt of
materials shall be computed from the of receipt by the attorney.
The record in this case indicates that the agency mailed the Notice to
complainant, but did not mail the Notice to complainant's representative.
Pursuant to 29 C.F.R. � 1614.605(d), unless a complainant states
otherwise in writing, the agency must provide complainant with copies
of all official correspondence, notwithstanding any instructions from
complainant to the contrary. There is no evidence supporting a finding
that complainant provided a written statement from her that she was not
to receive the official correspondence. Furthermore, where, as here,
the complainant's representative is not an attorney, the time for filing
the formal complaint is computed from the day the complainant received
the Notice. See Williams v. United States Postal Service, EEOC Request
No., 05990558 (November 20, 2001). Therefore, we find that the agency
properly dismissed complainant's complaint on the grounds that it was
not timely filed.
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 1, 2005
__________________
Date