0120123211
01-16-2013
Brenda Sue Sinclair, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Brenda Sue Sinclair,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120123211
Agency No. 4K300011212
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 3, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Sales Service Distribution Associate at the Agency's Cummings Post Office facility in Woodstock, Georgia.
On May 31, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discriminatory harassment on the bases of disability and reprisal when she was yelled at in front of a customer; management yelled at her and told her to stop talking and get to writing; management yelled at her and accused her of mishandling a money order; management yelled at her for accidently giving a customer a book of stamps without receiving payment for them; on February 2, 2012, she was issued a letter of warning; and on February 24, 2012, management allegedly made a statement "this is what you do when you don't like what the Post Office does to you."
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 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 discloses that Complainant's attorney received the notice of right to file a formal complaint on May 15, 2012. When a complainant is represented by an attorney, the complaint filing period runs from the date the attorney receives the notice of right to file. 29 C.F.R. � 1614.605(d). Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt and warned that failure to timely file could result in dismissal of the complaint, Complainant did not file her formal complaint until May 31, 2012, as evidenced by the postmark on the envelope containing the complaint, which is beyond the limitation period. On appeal, Complainant has not offered justification to warrant an extension of the time limit for filing the complaint.
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
January 16, 2013
__________________
Date
2
0120123211
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120123211