0120092083
06-04-2010
Pat O'Neal, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Pat O'Neal,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120092083
Agency No. 4K230015708
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 25, 2009, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability (unspecified) and reprisal
for prior protected EEO activity when:
1. On March 25, 2008 and several other unspecified dates, management
talked to him in a very nasty manner, calling him a boy, and told him
to get his ass or butt back to the post office and,
2. On or around March 25, 2008 management accused him of lying on a
background check.
In its final decision, the agency dismissed the formal complaint pursuant
to 29 C.F.R. � 1614.107(a)(2), on the grounds that the complaint was
untimely filed. On appeal, complainant denies having ever received
notice of his right to file a formal complaint and requests that the
Commission reverse the agency's decision. The agency requests that the
Commission affirm the dismissal.
Under 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).
The record contains a copy of the PS Form 2579-A "Notice of Right to
File Individual Complaint" (Notice) informing complainant that he had 15
days from the date of receipt in which to timely file a formal complaint.
Complainant signed the Notice and dated it July 18, 2008. Although the
Notice indicated that complainant had to file a formal complaint within
15 calendar days of its receipt, complainant did not file his formal
complaint until March 9, 2009, almost eight months beyond the limitation
period. Complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint. Moreover,
the Commission has consistently held that complainants must act with
due diligence in the pursuit of their claims or the doctrine of laches
may be applied. See O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). Therefore, the agency's
final decision dismissing the instant complaint for untimely filing of
the formal complaint was proper.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
June 4, 2010_______________
Date
2
0120092083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013