Keith P. White, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 2, 2007
0120064060 (E.E.O.C. Mar. 2, 2007)

0120064060

03-02-2007

Keith P. White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Keith P. White,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200640601

Agency No. 1B-012-0024-06

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated June 1, 2006, dismissing his 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.

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.

During the relevant period, complainant was employed as a Mail

Handler at a Massachusetts facility of the agency. On April 14, 2006,

complainant initiated contact with an EEO Counselor alleging that the

agency discriminated against him based on race (African-American), color

(Black), and reprisal for prior protected EEO activity when, effective

April 10, 2006, it placed him in emergency off-duty status without pay.

In a letter dated May 8, 2006, the EEO Counselor issued complainant

his Final Interview and Notice of Right to File Individual Complaint

(Notice). Both documents informed complainant that if he chose to file a

formal complaint, he had to do so within 15 calendar days of receipt of

the Notice. The agency provided a tracking confirmation that indicated

that the Final Interview and Notice were delivered to complainant's

post office box on May 10, 2006. In a complaint dated and mailed in an

envelope bearing a postmark of May 26, 2006, complainant reiterated the

above claim.

In its June 2006 final decision, the agency dismissed complainant's

complaint for untimely filing of the formal complaint. The agency

stated that complainant failed to provide an explanation to warrant

waiver or tolling of the applicable time limit. Complainant filed the

instant appeal. On appeal, complainant stated that he does not check his

post office box for mail on a daily basis. The agency responded that,

if complainant does not check his post office box daily, he should have

indicated a home/street mailing address as his address of record rather

than his post office box.

The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in

pertinent part, that an agency shall dismiss a complaint that fails to

comply with the applicable time limits contained in 29 C.F.R. � 1614.106.

29 C.F.R. � 1614.106(b) requires a complainant to file a formal complaint

within fifteen (15) days of receiving notice of the right to do so.

In the instant matter, the record reveals that an agency EEO Counselor

sent complainant a Notice informing him of the right to file a formal EEO

complaint within 15 calendar days of the date he received the Notice.

A tracking confirmation in the record indicates that the Notice was

delivered to complainant's address of record on May 10, 2006 - a post

office box. A postmark indicates that complainant did not file his formal

complaint until May 26, 2006, which is beyond the fifteen-day time limit.

On appeal, complainant has not offered adequate justification to warrant

an extension of the time limit for filing the complaint. Accordingly,

the Commission AFFIRMS the agency's dismissal of complainant's complaint.

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

March 2, 2007

__________________

Date

1 Due to a new Commission data system, this case has been redesignated

with the above-referenced appeal number.

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2

0120064060

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120064060