0120071698
05-07-2007
Paulino Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Paulino Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071698
Agency No. 1F-901-0162-06
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated October 25, 2006, dismissing his formal complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
In his formal complaint, complainant claimed that he was subjected to
discrimination on the basis of age when:
1. as of July 2006, complainant has not been paid mileage as promised
for working at a different facility during December 2005.
The agency issued a final decision dismissing the formal complaint
on the grounds that it was untimely filed. According to the agency,
complainant received his Notice of Right to File Individual Complaint
of Discrimination (hereinafter "Notice") on September 23, 2006, but
he did not file a formal complaint until October 16, 2006, beyond the
fifteen-day time limit.
The record contains a copy of the Notice which has been signed by
complainant indicating that he received the Notice on September 28, 2006.
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 October 16, 2006, as evidenced by
the postmark on the envelope, which is beyond the limitation period even
accepting the September 28, 2006 receipt date. On appeal, complainant
has not offered any justification to warrant an extension of the time
limit for filing the complaint. Therefore, we find that the agency
properly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
Accordingly, 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
May 7, 2007
__________________
Date
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0120071698
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120071698