01A33026_r
08-07-2003
Marbry A. Coleman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marbry A. Coleman v. United States Postal Service
01A33026
August 7, 2003
.
Marbry A. Coleman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33026
Agency No. 1-H-351-0028-03
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's employment discrimination complaint pursuant to 29
C.F.R. � 1614.107(a)(2), due to the untimely filing of his formal
complaint. In his complaint, complainant alleged that he was subjected to
discrimination on the basis of race (African-American) when on October 15,
2002, complainant learned that he was overlooked for a �MPE-07" position.
The record discloses that complainant received the notice of right
to file a formal complaint on January 17, 2003. 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 February 27, 2003, which is beyond the limitation period.
In its dismissal, the agency noted that complainant claims he mailed
the complaint, but then hand delivered a second copy on February 27,
2003 when he learned that the agency had not received the complaint.
The record includes a copy of the formal complaint. The complaint
is signed by complainant, dated January 27, 2003, date-stamped as
received on February 27, 2003, and altered with the words�walk-in�
written beside the date-stamp. In his letter to explain his delay,
complainant claims that he mailed the complaint on February 27, 2003,
but learned on February 21, 2003 that the agency had not received it.
Since complainant's mailing date is the same day complainant hand
delivered his complaint, is after the date he claims to have inquired
about the agency's receipt of the complaint, and would render the
complaint untimely, the Commission presumes it is a typographical error.
Even assuming complainant identified a mailing date within fifteen days
of January 17, 2003, he has provided no evidence of this prior mailing,
such as a certified receipt �green card.� Therefore, complainant has not
offered adequate justification to warrant an extension of the time limit
for filing the complaint, and the agency's final decision 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
August 7, 2003
__________________
Date