01a52923
06-15-2005
Larry Welker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Larry Welker v. United States Postal Service
01A52923
June 15, 2005
.
Larry Welker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01A52923
Agency No. 4E-990-0010-05
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 the basis of a
disability (anxiety and Depression) when he was required to work outside
of his limitations as specified in his limited duty job description.
The record discloses that complainant received the Notice of Right to
File a Formal Complaint (hereinafter �Notice�) on January 4, 2005.
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 until January 21, 2005, which is
beyond the limitation period. On appeal, complainant argues that he
did not receive the Notice until January 10, 2005 and he submits a
copy of a Mail Center log which indicates his signature on that date.
The record also contains a copy of the Return Receipt indicating the
signature of the certified letter by the owner of the Mail Center and
receipt on January 4, 2005.
The Commission relies on the presumption of constructive receipt if the
record demonstrates delivery to complainant's residence and receipt by a
person of suitable age and discretion. Pazinick v. United States Postal
Service, Request No. 05930337 (September 10, 1993). Here the address to
which complainant authorized delivery of his mail is the same as that of
the Mail Center which signed the Return Receipt on complainant's behalf
on January 4, 2005. His contention that he did not receive the Notice
until January 10, 2005 because that was the date that he signed the Mail
Center log is not adequate to rebut the presumption when there is no
indication that he did not authorize the Mail Center to receive important
mail items such as those delivered by certified mail. Complainant also
did not indicate that he did not know the individual who received the
agency's certified letter on his behalf such that constructive receipt
cannot be presumed.
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
June 15, 2005
__________________
Date