0120131156
06-06-2013
Audrea D. Flowers, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Audrea D. Flowers,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120131156
Agency No. 4E640007412
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 12, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier at the Agency's Parkway Station facility in Kansas City, Missouri.
On November 2, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), color (Not Specified), disability, age (40), and reprisal when: (1) in 2008, her she was not selected to be a trainer; (2) in 2008 and 2009, she was not considered to be a 204B Supervisor; (3) on an unspecified date in 2011, management had her route cased by a junior employee to eliminate her overtime hours; (4) in January and February 2011, her requests to change her scheduled days off were denied; and (5) on June 12, 2012, she was not permitted to participate in the bidding process.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The Agency also dismissed claims 1-4 for failure to contact an EEO counselor in a timely manner. 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 comply with the applicable time limits contained in 29 C.F.R. � 1614.106(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The record in this case indicates that the person Complainant identified as her attorney received a notice of the right to file a formal discrimination complaint on September 14, 2012.1 It appears Complainant herself received the notice by no later than September 26, 2012, the date she signed her formal complaint and the notice. The notice informed Complainant that she had fifteen days from the date of receipt of the notice in which to file a formal complaint.
Complainant's formal complaint was filed by mail in an envelope without a postmark that was received by the Agency on November 7, 2012. Where there is no legible postmark, a document is deemed timely if it is received within five days of the expiration of the applicable filing period. 29 C.F.R. � 1614.604(b). In this case, the filing period started no later than September 26, 2012, and thus expired on October 11, 2012. Five days later was October 16, 2012. Therefore, the complaint, received on November 7, was untimely filed. Complainant has failed to present adequate justification for extending the filing period.
Because we find that the complaint was untimely filed, we need not address the Agency's other reasons for dismissing claims 1-4.
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
June 6, 2013
__________________
Date
1 Complainant clearly identifies the person as an attorney on her complaint form. However, on the appeal form, this person is identified as "non-attorney representative", but uses the "J.D." after his name on the envelope. Therefore, the status of Complainant's representative as an attorney or non-attorney is unclear. Consequently, in reviewing the propriety of the Agency's dismissal of the complaint as untimely, we will use Complainant's receipt date of the notice of right to file rather than the earlier date of receipt by her representative.
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0120131156
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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