01a51930
04-14-2005
Cynthia James, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Cynthia James v. United States Postal Service
01A51930
April 14, 2005
.
Cynthia James,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A51930
Agency No. 4J-600-0196-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race
(Caucasian) and age (D.O.B. 5/13/56) when she learned that a younger
Hispanic female was being trained as a 204B acting supervisor in mail
processing, a position that she (complainant) had previously requested
and was continually denied.
The record reveals that complainant initially contact an EEO counselor
on July 24, 2004. The matters she raised in the pre-complaint process
were not resolved. A copy of the agency's certificate of service reveals
that the agency mailed a notice of the right to file an EEO complaint
by certified mail to complainant at her address of record on October
7, 2004. Complainant signed the return receipt certified mail card but
did not date it. A review of the notice reveals that the agency properly
advised complainant that she had fifteen days (15) after receipt of its
notice to file a written complaint with the agency. By letter dated
November 16, 2004, complainant wrote to the agency indicating that she
wanted to file a formal complaint and requested complaint forms because
her forms had been destroyed by her dog. Thereafter, complainant filed
her complainant on November 20, 2004.
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 a notice of the right to do so.
Here, the agency mailed complainant the notice of right to file a formal
complaint on October 7, 2004. Since the certificate of receipt was
undated, it is presumed that the notice was received within five (5)
calendar days (October 12, 2004) after it was mailed. The fifteen day
limitation period ended on October 27, 2004, and complainant did initiate
contact the agency to file a formal complaint until November 16, 2004,
which is beyond the fifteen (15) day limitation period. 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 (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:
April 14, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations