0120102721
09-17-2010
Michael J. Gibson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Michael J. Gibson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120102721
Agency No. 4H-300-0072-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 3, 2010, dismissing his formal 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
Complainant filed the instant formal complaint on the bases of age and in reprisal for prior protected activity, with the Agency on April 19, 2010, although the formal complaint itself was dated March 25, 2010.
In its May 3, 2010 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. Specifically, the agency determined that Complainant's representative received the Notice of Right to File a Discrimination Complaint (hereinafter "Notice") on March 15, 2010, as confirmed by a Postal Service Track and Confirm computerized tracking system, but that Complainant waited more than fifteen days from March 15, 2010, to file the formal complaint.
The record reflects that Complainant transmitted his formal complaint with the Commission in March 2010. It was received by the Commission on March 31, 2010. The Commission forwarded the complaint to the Agency in April 2010, and it was received on April 19, 2010. In its final decision, the Agency found that the sending of the formal complaint to the Commission did not excuse the late filing of the formal complaint with the Agency. The record contains sufficient evidence reflecting Complainant and his representative's receipt of the Notice on March 15, 2009, as determined by the Agency. The record contains a United States Postal Service "Track & Confirm" print-out which indicates a delivery on March 15, 2010 at Complainant's representative's law firm mailing address. The record reflects that an associate of the law firm signed the "Track & Confirm" on March 15, 2010.
On appeal, Complainant states that he "filed a formal complaint within the time limits dated 3/26/10 to E.E.O.C. Federal Sector Programs [addressed provided] and Office of Federal Operations, Federal Sector Program. Said complaint was inadvertently filed due to confusion of appropriate agency to file as described in the multiple documents."
ANALYSIS AND FINDINGS
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), Heald v. United States Postal Service, EEOC Appeal No. 0120092529 (September 17, 2009) (above principle applied to a formal complaint that was incorrectly filed with the Commission and untimely filed with the Agency). Accordingly, we do not construe the March 31, 2010 receipt of the formal complaint by the Commission as a timely filing of the complaint. Instead, Complainant filed the formal complaint with the Agency on April 19, 2010, more than fifteen days after receipt of the Notice.
The Agency's dismissal of the formal complaint on the grounds that it was untimely filed 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
September 17, 2010
__________________
Date
2
0120102721
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102721
5
0120102721