0120082832
09-17-2008
Joseph A. Burns, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph A. Burns,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082832
Agency No. 1C-443-0020-08
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 17, 2008, dismissing his 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., and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
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.
On November 21, 2007, complainant, an Electronic Technician at the
agency's Akron Processing and Distribution Center contacted an EEO
Counselor and alleged that he was subjected to discrimination on the bases
of age (DOB: 3-31-1957) and reprisal for prior protected EEO activity
when on November 15, 2007, he was given a Pre-Disciplinary Interview
(PDI) for incidents occurred on November 13, 2007, subsequently, he was
issued a Notice of Suspension of 14 days or Less dated December 3, 2007.
Informal efforts to resolve the matter were unsuccessful and the agency on
February 14, 2008, issued the Notice of Right to File a Complaint which
the complainant received on March 3, 2008. On May 12, 2008, complainant
filed a formal complaint with the agency. The agency dismissed the
complaint as untimely.
EEOC Regulation 29 C.F.R. � 1614.106(b) provides that a complaint must
be filed within 15 days after receipt of the notice of right to file a
complaint. Section 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).
The record discloses that complainant received the Notice of Right to
File a Formal Complaint on March 3, 2008. Although the notice indicated
that complainant had to file a formal complaint within fifteen (15)
calendar days of its receipt, complainant did not file his formal
complaint with the agency until May 12, 2008, which is well beyond the
limitation period. On appeal, complainant has not offered adequate
justification to warrant an extension of the time limit for filing
the complaint. While we note that complainant, despite the specific
instructions as to the appropriate agency address to file his complaint
given in the notice, attempted to file his complaint with the EEOC,
Office of Federal Operations on March 6, 2008. However, The Commission
has previously held that when provided with the proper address, filing
at the wrong address does not constitute a proper filing. See Meggitt
v. United States Postal Service, EEOC Appeal No. 01A40408 (February 3,
2004) (formal complaint untimely filed when sent to wrong address despite
receipt of proper instructions); Pacheco v. United States Postal Service,
EEOC Request No. 05930700 (September 10, 1993) (appeal untimely when sent
to wrong address). We have also considered that the record indicates
that complainant had filed several prior EEO complaints with the agency,
and so was familiar with the EEO complaints process and the applicable
time limits.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 17, 2008
Date
2
0120082832
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120082832