0120171298
07-21-2017
Micki C,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Micki C,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120171298
Agency No. 1B031003216
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 16, 2017, dismissing her complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Plant Sorting Facility in Essex Junction, Vermont.
On January 29, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability, age, and reprisal when: between April 19, 2015, and March 17, 2016 she was not selected for a seven positions as a Supervisor, Customer Service, at different facilities (claims 1-7); beginning March 24, 2016 and continuing, she was required to work outside of her medical restrictions and not accommodated with an anti-fatigue mat (claim 8); beginning March 24, 2016, and continuing, she was required to submit printed PS Form 3971s (claim 9); since August 2016 and continuing, her supervisor will not let her leave her work station and questions her when she is on lunch or break (claim 10); on September 6, 2016, she was charged absence without leave (AWOL) (claim 11); on September 19, 2016, she was notified she was not selected for the position of Postmaster at Waterbury Center, Vermont (claim 12); on September 20, 2016, she was notified not to fax her paperwork to the HRM Office (claim 13); on October 27, 2016, she was notified that she was non-selected for the position of Manager, Distribution Operations at North New England P&DC (claim 14); on October 19, 2016, her supervisor was rude and requested that Complainant go home (claim 15); and on November 24, 2016, she was not selected for the position of Supervisor, Customer Service at Williston, Vermont (claim 16).
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint.
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, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
The record discloses that Complainant received the notice of right to file a formal complaint on December 22, 2016. The notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt. Complainant filed her formal complaint with the Commission on December 29, 2016. Complainant did not file her formal complaint with the Agency until January 29, 2017, which is beyond the limitation period. The record establishes that the Agency provided Complainant with the proper Agency address for filing her 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.
We note that the Agency also dismissed claims 1-9 for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Complainant has filed prior EEO complaints so is presumed to be aware of the time limits for contacting a counselor. Complainant contacted the counselor on September 19, 2016. As such, we also find that claims 1-9 were untimely raised.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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.
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 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
July 21, 2017
__________________
Date
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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