Kenneth Robinson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 11, 2007
0120071706 (E.E.O.C. May. 11, 2007)

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