0120121842
07-18-2012
Tammy L. Benfield, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tammy L. Benfield,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121842
Agency No. 4G-760-0040-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 9, 2012, dismissing a 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a City Letter Carrier at the Agency's Lonestar Station, Amarillo, Texas.
On February 21, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex, age, and in reprisal for prior protected activity. On March 9, 2012, the Agency issued a final decision dismissing the formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was not timely filed. The Agency determined that Complainant had received the Notice of Right to File a Formal Complaint (Notice) on March 14, 2011, but that she filed a formal complaint on February 21, 2012, well beyond the 15-day time limit set by the regulations.
The instant appeal followed. On appeal, Complainant asserts that she sent the EEO complaint to the Agency by Certified Mail Article No. 7010 1870 0002 7619 1635, and it was received and signed for on February 28, 2011, by a representative of the Agency.
In response, the Agency asserts that Complainant did not file a formal complaint in February 2011. Specifically, the Agency submits documents reflecting Complainant's submission by Certified Mail Article No. 7010 1870 0002 7619 1635 actually consisted of Complainant's "Information for Pre-Complaint Counseling" dated February 24, 2011, and not a formal complaint. The Agency further asserts that it did not even send out a Notice of Right to File to Complainant until March 11, 2011, which Complainant received on March 14, 2011, as established by signature confirmation. The Agency asserts that Complainant subsequently filed her formal complaint with the Commission's Office of Federal Operations (and not to the Agency) by mistake, which ultimately sent the formal complaint to the Agency in February 2012.
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.
Contrary to Complainant's assertions on appeal, the record does not support a finding that she sent to the Agency any document which can be identified as a "formal complaint" in February 2011. Indeed, the Notice of Right to File was not even sent to Complainant until sometime later, in March 2012. Despite the clear instructions in the Notice, Complainant sent her formal complaint on March 22, 2011, to the wrong address - filing it with the Commission rather than the Agency.
In summary, the record discloses that Complainant received the Notice on March 14, 2011. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until February 21, 2012, which is beyond the limitation period. The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing. See Meggitt v. United States Postal Service, EEOC Appeal No. 01A40408 (February 3, 2004). On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the formal complaint.
Accordingly, the Agency's final decision dismissing Complainant's formal complaint for untimely filing 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
July 18, 2012
__________________
Date
2
0120121842
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121842