[Redacted], Myrtie P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionFeb 3, 2022Appeal No. 2022000282 (E.E.O.C. Feb. 3, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Myrtie P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000282 Agency No. 4E-995-0017-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 30, 2021, dismissing her complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Muldoon Post Office in Anchorage, Alaska. On September 11, 2021, Complainant filed a formal EEO complaint alleging that she was subjected to discrimination against based on disability In its September 30, 2021 final decision, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for being untimely filing. The Agency reasoned that Complainant received the Notice of Final Interview and Right to File a Formal Complaint on August 24, 2021. The Agency found that Complainant filed the formal complaint on September 11, 2021, outside of the applicable time period. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022000282 2 The instant appeal followed. 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 complete with the applicable time limits contained in 29 C.F.R. §1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The Agency issued Complainant a notice of right to file a formal complaint (“the Notice”) in August 19, 2021 by U.S. mail with signature confirmation. The record contains relevant Postal Service tracking information that shows that the Notice was delivered to Complainant’s address of record on August 24, 2021 and she signed the Notice. Complainant does not dispute this date as the day she received the Notice or that the Notice contained information informing her of the 15-day deadline. Complainant filed her formal complaint by mail to the Agency address provided in the Notice. The record contains the envelope that contained the complaint that is clearly postmarked on September 11, 2021, 18 days after she received the Notice. On appeal, Complainant argues that her complaint was timely filed. Complainant asserts she mailed the complaint on Thursday, September 2, 2021. She acknowledges, however, that she erred in mailing it in the “outgoing box in [her] CBU.2 Complainant states that, by doing so, she was unable to secure any tracking or delivery confirmation. Complainant states further that she took this approach because she felt that she had no time to make a trip to the Post Office, as she was pressed to timely arrive at the airport for a cross country flight. EEOC Regulation 29 C.F.R. § 1614.604(b) provides that a document is deemed timely if it is postmarked before the expiration of the applicable filing period. Here, the envelope containing the complaint is clearly postmarked three day after the expiration of the 15-day filing period. We find that Complainant has not provided adequate justification for excusing the delay in filing. Complainant has no evidence that she mailed her complaint prior to the postmark date. The fact that she may have chosen an admittedly unreliable method of mailing her complaint is not adequate justification. CONCLUSION For the reasons stated above, we AFFIRM the Agency’s dismissal of the complaint as untimely filed. 2 A CBU is a centralized group of mailboxes used extensively in neighborhoods, apartments, condos and businesses. 2022000282 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2022000282 4 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 3, 2022 Date Copy with citationCopy as parenthetical citation