Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

May 9, 2013

0120120767 (E.E.O.C. May. 9, 2013)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

,
Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 0120120767

Agency No. 4E-680-0033-10

DISMISSAL

Complainant filed an appeal with this Commission from the October 26, 2011 final Agency
decision concerning his EEO 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. For the following reasons, the Commission DISMISSES Complainant’s appeal.

Complainant filed a formal complaint dated May 3, 2010, alleging the Agency discriminated
against him on the basis of age (54) when:

1. On August 31, 2009, Complainant’s route was adjusted adding two walking swings;
2. In late February 2010, when Complainant stated he may not retire when eligible, his
manager stated they may add some more walking to Complainant’s route;
3. On March 20, 2010, Complainant’s begin time was moved from 7:30 a.m. to 8:00
a.m.;
4. On March 23, 2010, Complainant was told not to sort non-caseable SPRs on office
time;
5. On March 24, 2010, Complainant’s manager asked him “why don't you just retire?”
and “keep it up, we'll take your lunch (at home) away from you,” regarding his office
time.
6. On April 26, 2010, Complainant was denied a temporary T-6 assignment; and
7. On an unspecified date, Complainant was forced to retire (constructive retirement).

On August 17, 2010, the Agency accepted issues (3), (6), and (7) for processing. The Agency
dismissed issues (1), (2), (4), and (5) for failure to state a claim. Additionally, the Agency
dismissed issue (1), for untimely EEO Counselor contact.
0120120767

2

At the conclusion of the investigation on the accepted issues, the Agency provided
Complainant with a copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing;
however, he subsequently withdrew his request for a hearing. Thus, the AJ remanded the case
to the Agency for issuance of a final decision. On October 26, 2011, the Agency issued a final
decision.

By regulation, a complainant’s appeal must be filed within 30 days of receipt of an agency’s
final decision. 29 C.F.R. § 1614.402(a). The record reveals that the final decision was
received at Complainant's address of record on October 29, 2011. A review of the final
decision reveals that the Agency properly advised Complainant that he had 30 calendar days
after receipt of its final decision to file his appeal with the Commission. Therefore, in order to
be considered timely, Complainant had to file his appeal no later than November 28, 2011.
The record reveals Complainant filed his appeal at the earliest on November 30, 2011, the date
indicated on the appeal form. On appeal, Complainant states that he was out of town and did
not receive a copy of the final decision until November 3, 2011. Complainant does not argue
that the final decision was not actually delivered to the correct address on October 29, 2011.
Upon review, we find Complainant has not offered adequate justification to warrant an
extension of the time limit for filing the complaint. Accordingly, Complainant's appeal is
DISMISSED pursuant to 29 C.F.R. §1614.403(c).

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.
0120120767

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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

May 9, 2013
Date