01A43353_r
09-21-2004
Peter D. Blair, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Peter D. Blair v. United States Postal Service
01A43353
September 21, 2004
.
Peter D. Blair,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43353
Agency No. 4F-920-0017-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for failure
to timely file a complaint. In a complaint dated December 13, 2003,
complainant alleged that he was subjected to discrimination on the bases
of race (Non-Filipino), disability, age (D.O.B. 12/15/51), and reprisal
for prior EEO activity when:
On September 2, 2003, the Manager attempted to negatively influence a
Medical/Labor Relations Investigative Interview conducted on complainant.
On October 11, 2003, the Manager falsified official seating/work
assignment documentation.
On November 29, 2003, the Manager committed an attempt to �set complainant
up,� by instructing the Supervisor to intentionally incorrectly assign
complainant's seating in coordination with rank and file workers.
The agency dismissed the complaint as untimely filed and for failure to
state a claim. The agency states that complainant received the Notice
of Right to File a Complaint on November 26, 2003. The agency noted
that the evidence in the record shows that complainant's complaint was
postmarked December 13, 2003, which was two days past the expiration of
the 15-day time limit in which to file a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency
shall dismiss a complaint that fails to comply with the applicable time
limits contained in 29 C.F.R. � 1614.106. EEOC Regulation 29 C.F.R. �
1614.106(b) provides that complaints must be filed within 15 days of
receipt of the Notice of Right to File a Complaint.
The record indicates that complainant received a Notice of the Right to
File a Formal Complaint on November 26, 2003. The Notice of the Right to
File a Formal Complaint informed complainant that he had 15-days from the
date of receipt in which to file a complaint. The fifteenth day to file
the complaint was Thursday, December 11, 2003. The record reflects that
complainant filed two formal complaints postmarked December 12 and 13,
2003. Thus, complainant's complaint was untimely and was appropriately
dismissed by the agency.
Because we affirm the agency's dismissal of the instant complaint for
the reason stated herein, we find it unnecessary to address the agency's
alternative dismissal grounds.
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
September 21, 2004
__________________
Date