Daniel R. Darling, Sr., Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 27, 2007
0120070288 (E.E.O.C. Feb. 27, 2007)

0120070288

02-27-2007

Daniel R. Darling, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Daniel R. Darling, Sr.,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070288

Agency No. 4B-140-0075-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated October 2, 2006, dismissing his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

On September 22, 2006, complainant filed a formal complaint. Therein,

complainant claimed that he was subjected to discrimination on the bases

of race, disability, and age.

In its final decision, dated October 2, 2006, the agency dismissed

complainant's complaint on the grounds that it was untimely filed.

The agency stated that complainant signed the Notice of Right to File

on September 5, 2006, but that he did not file his formal complaint

until September 22, 2006, which is outside of the applicable time limit.

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.

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, and 1614.204(c), unless the agency extends

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

The record in this case indicates that complainant received the notice of

the right to file a formal discrimination complaint on September 5, 2006.

The notice of right to file and the final interview letter informed

complainant that he had fifteen days from the date of receipt of the

notice in which to file a formal complaint. The record further reflects

that complainant did not file a formal complaint within fifteen days

of his receipt of this notice but, instead filed the formal complaint

on September 22, 2006. 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 27, 2007

Date

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0120070288

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070288