0120103424
02-08-2011
Arena E. Franklin, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Arena E. Franklin,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120103424
Agency No. 4G-770-0237-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 30, 2010, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to untimely filing of the formal complaint.
BACKGROUND
During the relevant period, Complainant worked as a Rural Carrier Associate at a Houston, Texas postal facility. On May 21, 2010, Complainant initiated EEO contact alleging that the Agency subjected her to hostile work environment harassment on the basis of reprisal for prior protected EEO activity when the Agency blamed her for lockout from the postal facility. Subsequently, Complainant added that the Agency issued her a 7-day suspension in May 2010 and a Letter of Termination effective July 2, 2010.
In a letter dated June 18, 2010, accompanied by a Notice of Right to File an Individual Complaint (NORF), an EEO Counselor informed Complainant of the right to file a formal complaint within 15 days of the date of receipt of the NORF letter or risk dismissal if filed outside the 15-day time limit. Further, the June 18 letter indicated, "Your complaint will be deemed timely if it is postmarked before the expiration of the15 day time limit." Subsequently, Complainant filed a formal complaint dated July 1, 2010, in a stamped envelope addressed to the Agency's Florida complaint processing center and without a postmark. The envelope was date-stamped "received" July 12, 2010.
In its July 30 decision, the Agency dismissed Complainant's claim pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely formal complaint. Specifically, the Agency stated that the NORF was delivered to Complainant June 21, 2010 and Complainant had until July 6, 2010 to file formally, but it did not receive her formal complaint until July 12. The Agency noted that Complainant's envelope did not bear a postmark. Further, the Agency stated that her complaint failed to state a claim. The instant appeal from Complainant followed without substantive comment.
ANALYSIS AND FINDINGS
We find that Complainant's harassment claim was properly dismissed, pursuant to 29 C.F.R. � 1614.107(a)(2). 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. 29 C.F.R. � 1614.106 requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. A document should be considered timely if it is received or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, a document will be deemed timely if received by mail within five (5) days of the expiration of the 15-day limitation period. See 29 C.F.R. � 1614.604(b). All � 1614 time limits are in terms of calendar days unless otherwise noted. 29 C.F.R. � 1614.604(a).
The record discloses that Complainant received the NORF letter on June 21, 2010. The record, however, reflects a missing postmark on the envelope in which the instant formal complaint was mailed. And, we find a missing postmark comparable to an illegible one. The Agency date-stamped the formal complaint as received on July 12, 2010, which is beyond five days outside the expiration of the fifteen-day limitation period. Accordingly, we AFFIRM the agency's final decision dismissing Complainant's complaint. We find it unnecessary to address the alternate dismissal basis.1
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
___February 8, 2011______
Date
1 We note that Complainant's July 2, 2010 termination should not be considered part of the instant harassment claim. Hence, Complainant's July 2010 termination issue is not the "same claim" as the instant harassment claim. To the extent that Complainant was attempting to raise her termination in the EEO process, the date Complainant sought to include termination as support for the instant harassment claim should be considered the date of initial EEO contact for timeliness purposes.
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0120103424
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103424