0120093625
02-25-2010
Charles W. Widmer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Charles W. Widmer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120093625
Agency No. 1G721004008
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated August 10, 2009, dismissing his 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. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of reprisal for prior
protected EEO activity when beginning on February 15, 2008, his annual
leave balance was reduced by 8 hours per pay period.1
The agency dismissed complainant's complaint under 29 C.F.R. �
1614.107(a)(2) on the grounds that it was untimely filed. A "certificate
of service" indicates that a notice of right to file a complaint
was mailed to complainant and his attorney on November 20, 2008.
Complainant's attorney signed a receipt indicating he received the notice
on November 26, 2008. The agency determined that complainant did not file
his complaint with the agency until July 20, 2009, beyond the fifteen day
time limit. The record reflects that the Notice informed complainant of
the 15 day time limitation and of the address at the agency for filing
the formal complaint.
The record reflects that complainant filed his complaint with this
Commission on December 3, 2008. The Commission forwarded the complaint
to the agency in July 2009, and it was received by it on July 20, 2009.
In its FAD, the agency found that the filing of the complaint with the
Commission did not excuse the late filing of the complaint with the
agency.
On appeal, complainant writes that he made an error when he mailed his
complaint to the EEOC rather than the agency. Complainant writes that
the address of the EEOC is on the second page of the complaint form.
He writes that he was suffering from major depression and generalized
anxiety disorder, and was having difficulty concentrating and following
instructions during that time. The second page of the complaint
form contains detailed overall information about the EEO complaint
process, and gives the EEOC address for filing administrative appeals.
In opposition to the appeal, the agency argues that its final decision
should be affirmed.
The Commission has previously held that when provided with the proper
address, filing at the wrong address does not constitute a proper filing.
See Pacheco v. United States Postal Service, EEOC Request No. 05930700
(September 10, 1993) (appeal untimely when sent to wrong address despite
receipt of proper instructions), Heald v. United States Postal Service,
EEOC Appeal No. 0120092529 (September 17, 2009) (above principle
applied to a formal complaint that was incorrectly filed with the
Commission and untimely filed with the agency). The notice of right to
file the complaint gave clear explicit instructions on where to file.
Complainant's arguments on appeal are not persuasive. Accordingly,
we do not construe complainant's December 3, 2008 correspondence with
the Commission as constituting a timely filing of the complaint.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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 25, 2010
__________________
Date
1 Complainant contended that because his ongoing absence was due to
an illness or injury approved Office of Workers' Compensation Programs
(OWCP), his annual leave balance should not be deducted.
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0120093625
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093625