01A31993
06-18-2003
Gregory C. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gregory C. Smith v. United States Postal Service
01A31993
06-18-03
.
Gregory C. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31993
Agency No. 4F852001203
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 his complaint, complainant
alleged that he was subjected to discrimination on August 23, 2002 on the
bases of race (African-American) and disability (carpal tunnel syndrome;
diabetes; loss of left eye) when the Maryvale Station Manager terminated
him as acting supervisor on detail assignment and reassigned him to his
regular station. Complainant also alleged that the Station Manager �bad
mouthed� him to other employees. After an unsuccessful REDRESS mediation
session, complainant filed a formal complaint on December 3, 2002.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a written
complaint with the appropriate agency official within fifteen (15)
calendar days after the receipt of the notice of the right to file a
formal complaint. The record discloses that complainant received the
notice of right to file a formal complaint to the EEO Office of the USPS
Arizona District on November 25, 2002. Although complainant filed his
formal complaint on December 3, 2002, he incorrectly mailed it to the
EEOC's Office of Federal Operations. The Office of Federal Operations
forwarded complainant's complaint to the appropriate official at the
USPS Arizona District Office. The complaint was received by the agency
on December 27, 2002, seventeen (17) days beyond the limitation period.
On appeal complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint.
Due to the lack of justification for the complainant's failure to send
his formal complaint to the appropriate agency after being notified of
the proper location, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___06-18-03_______________
Date