0120110999
05-18-2011
Marion Isom, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Marion Isom,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120110999
Agency No. 1C-171-0011-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 4, 2010, 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 Mail Handler at the Agency's Harrisburg Processing & Distribution Center in Harrisburg, Pennsylvania.
On October 20, 2010, Complainant filed a formal EEO complaint claiming that he was the victim of unlawful employment discrimination on the bases of race (African-American), sex (male), age (48), and in reprisal for prior protected activity when, on July 20, 2010, he was issued a notice of removal for "improper conduct," that was later reduced to a seven-day suspension.
On November 4, 2010, the Agency issued the instant final decision. The Agency dismissed the formal complaint as untimely filed, finding that both Complainant and his attorney received the Notice of Right to File a Complaint on September 28, 2010, but that Complainant's formal complaint was not filed until October 20, 2010, beyond the fifteen-day time limit set by regulation.1
CONTENTIONS ON APPEAL
On appeal, Complainant's attorney claims that Complainant's illness from September 27 through October 19, 2010, caused the delay in the filing of the formal complaint. However, no information is provided about the nature or severity of the illness. Complainant also asserts that he changed his personal post office boxes during this period, which added to the confusion.
ANALYSIS AND FINDINGS
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(b) which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so. In the instant case, the record discloses that Complainant's attorney of record received the Notice of Right to File a Formal Complaint on September 28, 2010. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant's formal complaint was not filed until October 20, 2010, which is beyond the limitation period.
On appeal, Complainant concedes that he filed his formal complaint beyond the requisite fifteen-day period. However, Complainant's attorney argues that the delay in timely filing a formal complaint was attributable, at least in part, to Complainant's health. When a complainant claims that a physical condition prevents him from meeting a particular filing deadline, the Commission has held that in order the justify the untimely filing, the complainant must be so incapacitated by the condition as to render him physically incapable to make a timely filing. See Zelmer v. USPS, EEOC Request No. 05890164 (March 8, 1989). Nothing in the record reflects that Complainant was so incapacitated during the applicable fifteen-day filing period as to prevent him from timely filing a formal complaint. With regard to Complainant's claim of delay caused by changing his personal post office box, this did not impact on service of the Notice of Right to File on his attorney, Accordingly, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the instant formal complaint.
The Agency's final decision dismissing Complainant's formal complaint, pursuant to 29 C.F.R. � 1614.107(a) (2), is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 18, 2011
__________________
Date
1 In its final decision, the Agency inadvertently identified the filing date of the formal complaint as September 20, 2010, instead of October 20, 2010. The Agency noted this inadvertence on appeal.
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0120110999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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