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
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0120070306