01a54022
08-24-2005
Keionna S. Reese, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Keionna S. Reese v. United States Postal Service
01A54022
August 24, 2005
.
Keionna S. Reese,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01A54022
Agency No. 4J-600-0057-05
DECISION
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 her complaint, complainant
alleged that she was subjected to discrimination on the bases of
disability and in reprisal for prior EEO activity (complaining about
sexual harassment) when on December 17, 2004, she was issued a Notice
of Removal with an effective date of January 29, 2005.
EEOC Regulation 29 C.F.R. � 1614.106(b) states that a complaint must
be filed with fifteen days of receipt of the Notice of Right to File
a Discrimination Complaint. Moreover, section 1614.107(a)(2) states
that the agency shall dismiss a complaint that fails to comply with the
applicable time limits contained in section 1614.106.
Upon review, the Commission finds that the complaint was properly
dismissed. The record discloses that complainant received the notice of
right to file a formal complaint on March 24, 2005. 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 April 12, 2005, which is beyond the limitation period.
Complainant has not offered adequate justification to warrant an extension
of the time limit for filing the complaint. Complainant simply argues
that she was late because she was out of town and the post office had
withheld her mail until her return on March 30, 2005. The Commission
has held that being out town is insufficient to toll the time period for
filing a formal complaint. See Marshall v. Dep't of Veterans Affairs,
EEOC Appeal No. 01A52286 (July 19, 2005). Although we do not doubt that
indeed complainant was out of town when she claims to have been, we are
not persuaded that her case merits an equitable tolling of the deadline.
She admits that she ultimately received the right to file notice on
March 30, 2005. She had a full nine days to prepare and mail her
formal complaint. Accordingly, the agency's final decision dismissing
complainant's 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
August 24, 2005
__________________
Date