0120071706
05-11-2007
Kenneth Robinson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth Robinson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071706
Agency No. 4B018010006
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 16, 2007, dismissing his 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.
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 the basis of age (D.O.B. 07/30/39) when he was subjected
to harassment regarding various terms and conditions of his employment.
The record discloses that the notice of right to file a formal complaint
was mailed on November 27, 2006, as evidenced by the agency's certificate
of service which expressly informed complainant that he would be presumed
to have received it within five business days, or by December 2, 2006.
The notice indicated that complainant had to file a formal complaint
within fifteen (15) calendar days of its receipt1, and provided the
appropriate agency address where the complaint was to be filed. However,
complainant never filed his formal complaint with the agency. Instead,
he mailed his complaint to the EEOC, which forwarded it to the agency
in an envelope postmarked December 23, 2006. December 23 was beyond
the 15-day filing period.
The issue in this case is whether mistakenly filing the complaint with
EEOC rather than the agency constitutes a valid filing. The record
establishes that the agency provided complainant with the proper
agency address for filing his complaint. The Commission has previously
held that when provided with the proper address, filing at the wrong
address does not constitute a proper filing. See Pacheco v. United
States Postal Service, EEOC Request No. 05930700 (September 10, 1993)
(appeal untimely when sent to wrong address despite receipt of proper
instructions); Meggitt v. United States Postal Service, EEOC Appeal
No. 01A40408 (February 3, 2004)(above principle applied to a formal
complaint that was untimely filed).
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 11, 2007
__________________
Date
1 As the fifteenth day, December 17, 2006, was a Sunday, the filing
period was extended to Monday, December 18, 2006.
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0120071706
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120071706