Keri C.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Apr 26, 2019

EEOC Appeal No. 2019002318 (E.E.O.C. Apr. 26, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Keri C.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 2019002318

Agency No. 4E-980-0018-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated November 15, 2018, dismissing a 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.

BACKGROUND

During the period at issue, Complainant worked as a Sales, Service and Distribution Associate at
the Agency’s Post Office in Tieton, Wshington. Complainant filed a formal complaint alleging
that the Agency subjected her to retaliation for prior protected EEO activity.

On November 15, 2018, the Agency issued a final decision. The Agency dismissed
Complainant’s formal complaint on the grounds it was untimely filed. The Agency reasoned that
Complainant receive the Notice of Right to File a Formal Complaint (Notice) on March 6, 2018,
but sent it to the Commission’s Office of Federal Operations (OFO) rather than to the Agency
(U.S. Postal Service). The Agency stated that it did not receive Complainant’s formal complaint
until October 2018, outside of the applicable time period.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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The instant appeal followed. Complainant does not submit a brief or statement in support of her
appeal.

ANALYSIS AND FINDINGS

The Agency properly dismissed Complainant’s formal complaint on the grounds it was untimely
filed. The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an
agency shall dismiss a complaint which fails to comply with the applicable time limits contained
in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.

Th record reflects that Complainant received the Notice on March 6, 2018. The Agency’s final
interview letter dated February 26, 2018, properly indicated that failure to file the formal
complaint within 15 days of receipt of the Notice could result in the dismissal of the formal
complaint. In addition, the final interview letter properly set forth that the formal complaint
should be filed with the Agency (U.S. Postal Service). The Notice, PS Form 2579-A, also
informed Complainant of the applicable deadline and the proper address to file her formal
complaint with the Agency. The record reflects, however, that Complainant filed the formal
complaint with OFO rather than the Agency, despite being provided with the proper address to
file her formal complaint. See Heald v. U.S. Postal Serv., EEOC Appeal No. 0120092529 (Sept.
17, 2009) (affirming agency’s dismissal for untimely filing of a formal complaint when
complainant improperly filed his formal complaint with the Commission rather than the
Agency). 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. U.S. Postal Serv.,
EEOC Appeal No. 05930700 (Sept. 10, 1993). OFO forwarded Complainant’s formal complaint
to the Agency in March 2018. Based on the foregoing, we find that Complainant’s complaint
was untimely filed.

We AFFIRM the Agency’s final decision dismissing the formal complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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.
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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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
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court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

April 26, 2019
Date