0120111162
12-20-2011
Melissa Rock, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Melissa Rock,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120111162
Agency No. 4C400005810
DECISION
Complainant filed a timely appeal1 with this Commission from the Agency's
decision dated October 21, 2010, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail Carrier at the Agency’s Owensboro Main Post Office facility
in Owensboro, Kentucky.
On October 4, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of sex (female),
disability, and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when:
1. On March 16, 2010 she was required to carry an additional 30 minutes
a route;
2. On April 14, 2010, she was instructed to carry an additional 30
minutes on her route;
3. On April 15, 2010, she was subjected to a pre-disciplinary
investigation;
4. On May 4, 2010 her request for six (6) hours of annual leave was
denied;
5. Since April 15, 2010 she has been denied steward time;
6. On April 7, 2010 after being off work on approved FMLA leave she was
questioned why she was absent;
7. On August 2, 2010 management did not approve her leave request for
August 5, 2010 and denied her request to see a union steward
The record shows that originally, on August 6, 2010, Complainant filed
her formal complaint with the EEOC. By letter dated October 1, 2010,
EEOC transmitted the documents to the Agency, informing it, as well as
Complainant and her attorney, of the error.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely filing of the formal complaint. The instant
appeal followed.
ANALYSIS AND FINDINGS
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(b) which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that Complainant received the notice of right to
file a formal complaint on July 26, 2010. Although the notice indicated
that Complainant had to file a formal complaint within fifteen (15)
calendar days of its receipt, the Agency did not receive the complaint
until October 4, 2010. Complainant initially filed her formal complaint
with EEOC on August 6, 2010, rather than with the Agency.
The issue to be determined is whether mistakenly filing her complaint
with the EEOC rather than the Agency constitutes a valid filing. The
record establishes that the Agency provided Complainant with the proper
Agency address for filing her 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 Service, EEOC Request No. 05930700 (September 10, 1993)
(appeal untimely when sent to wrong address despite receipt of proper
instructions); Meggitt v. United States Postal Service, EEOC Appeal
No. 01A40408 (February 3, 2004)(above principle applied to a formal
complaint that was untimely filed). On appeal, Complainant has not
offered justification to warrant an extension of the time limit for filing
the complaint. Because we find the complaint was untimely filed, we need
not address the Agency’s other reasons for dismissing the complaint.
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 20, 2011
__________________
Date
1 Both the appeal form and the “Privacy Act Notice” contain an
outdated address of the Commission. The Agency is cautioned as to using
document with the outdated address.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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