0120110017
02-24-2011
Collin R. Willis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Collin R. Willis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110017
Agency No. 1G730007310
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 1, 2010, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the events at issue, Complainant was employed as a
Transitional Letter Carrier in a post office in Tulsa, Oklahoma.
In his EEO complaint, Complainant alleged that the Agency subjected
him to discrimination on the basis of age when, on June 1, 2010, he was
terminated for unsatisfactory work performance.
The record reflects that Complainant requested pre-complaint processing
on June 14, 2010, and received the Notice of Right to File Individual
Complaint of Discrimination (PS Form 2S79-A) on July 16, 2010.
Although the Notice provided Complainant with an Agency address for
filing his formal complaint, the record further reflects that Complainant
incorrectly filed it with the Commission's Office of Federal Operations
(OFO). The Agency received the complaint, forwarded from OFO, on August
24, 2010, approximately 39 days after Complainant received the Notice of
right to file. The Agency dismissed the matter, pursuant to 29 C.F.R. �
1614.107(a)(2), due to the untimely filing of the formal complaint. The
instant appeal followed.
On appeal, Complainant only addresses the merits of his complaint.
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,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so. Furthermore,
the Commission's regulations found at 29 C F.R. �1614.106 (a) state
in pertinent part: (a) A complaint must be filed with the agency that
allegedly discriminated against the Complainant.
The record discloses that Complainant received the notice of right to
file a formal complaint on July 16, 2010. Although the notice indicated
that Complainant had to file a formal complaint within fifteen (15)
calendar days of its receipt, and provided Complainant with the proper
Agency address to send his complaint, Complainant incorrectly filed with
the Commission rather than the Agency. As a result, the Agency did not
receive the formal complaint until August 24, 2010, which is beyond the
limitation period.
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); Meggitt v. United States Postal Service,
EEOC Appeal No. 01A40408 (February 3, 2004) (above principle applied to
a formal complaint that was untimely filed). On appeal, Complainant has
not offered adequate 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
February 24, 2011
__________________
Date
2
0120110017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120110017