01a52538
05-19-2005
Pinkie B. Williams v. United States Postal Service
01A52538
May 19, 2005
.
Pinkie B. Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52538
Agency No. 1J-607-0002-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 28, 2005, dismissing her 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. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of sex (female), age
(D.O.B. 8/1/58), and reprisal for prior EEO activity when:
On October 1, 2004, Supervisor accused her of being missing from her
assignment and blamed her for tubs and bins not being labeled; and
On October 12, 2004, she was issued a Letter of Warning for being missing
from her assignment and failing to perform any assigned postal duties.
The agency dismissed the complaint for untimely filing of the formal
complaint.
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,
which requires the filing of a formal complaint within fifteen (15)
days of receiving a notice of the right to do so.
The record discloses that the agency mailed complainant the notice of
right to file a formal complaint on December 8, 2004. It is presumed
that complainant received the notice within five (5) calendar days after
it was mailed, or no later than December 13, 2004. 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 January 20, 2004, which is beyond the limitation period.
On appeal, complainant failed to rebut the presumption that she received
the notice of right to file a formal complaint by December 13, 2004.
Furthermore, the record reveals that complainant signed the formal
complaint on December 9, 2004, which indicates the document was in
her possession on that date. Consequently, we find complainant has
not offered adequate justification to warrant an extension of the time
limit for filing the complaint, and the agency properly dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely filing of
the formal complaint.
Accordingly, the final agency 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
May 19, 2005
__________________
Date