Chereise D. White, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120070306 (E.E.O.C. Feb. 16, 2007)

0120070306

02-16-2007

Chereise D. White, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Chereise D. White,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070306

Agency No. 4K-210-0075-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated September 12, 2006, dismissing her formal 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.

On June 20, 2006, complainant initiated contact with an EEO Counselor.

Informal efforts to resolve her concerns were unsuccessful. In her formal

complaint, complainant claimed that she was subjected to discrimination

on the bases of race, sex, and color.

In its final decision, dated September 12, 2006, the agency dismissed

the complaint on the grounds that it was untimely filed. The agency

determined that the notice of right to file a formal complaint (Notice)

was mailed to complainant on August 11, 2006, with a 5-day presumed

delivery. The agency stated that relying on the 5-day presumption,

it determined that complainant had until August 31, 2006, in which

to timely file a formal complaint. The agency further stated that

complainant filed a formal complaint on September 1, 2006, the postmark

on the envelope containing complainant's formal complaint. The agency

therefore determined that complainant filed her formal complaint outside

of the applicable time period.

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint.

EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency

shall dismiss a complaint that fails to comply with the applicable time

limits contained in ��� 1614.105, 1614.106, 1614.204(c), unless the

agency extends the time limits in accordance with � 1614.604(c).

The agency properly dismissed complainant's complaint on the grounds that

it was untimely filed. The agency mailed the Notice to complainant on

August 11, 2006. The Notice contained a Certificate of Service stating

"[i]t should be noted that the EEO Commission accepts that absent a

receipt for delivery that delivery is accomplished within five days

of mailing. Therefore, timeframes should be computed as commencing

five days from the date of the letter." The five-day presumption,

unrebutted by complainant, reflects a receipt date of the Notice of

August 16, 2006, at the latest. Complainant filed her formal complaint

on September 1, 2006, which is one day beyond the fifteen-day time limit.

The Notice informed complainant that she had to file a formal complaint

within fifteen days of receipt of the Notice for the complaint to be

timely filed. The Commission finds that complainant has failed to

present adequate justification, pursuant to 29 C.F.R. � 1614.604(c)

for extending the filing period.

Accordingly, we AFFIRM the agency's final decision dismissing

complainant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court

appoint an attorney to represent you and that the Court 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 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 16, 2007

_______________

Date

2

0120070306

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

4

0120070306