01A25036_r
09-15-2003
Robert E. Nobles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert E. Nobles v. United States Postal Service
01A25036
September 15, 2003
.
Robert E. Nobles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A25036
Agency No. 1G-755-0014-02
DECISION
The record reveals that on October 10, 2001, complainant was removed
from employment with the agency. Complainant raised the matter of his
removal in an affidavit that he submitted pursuant to his complaint
in Agency No. 1G-755-0052-01. Complainant initiated contact with an
EEO Counselor concerning his removal on October 16, 2001. By letter
dated December 19, 2001, an EEO Investigator notified complainant that
the issue of his removal would not be included for investigation in
Agency No. 1G-755-0052-01. Complainant was advised that the letter of
warning at issue in Agency No. 1G-755-0052-01 is not appealable to the
Merit Systems Protection Board (MSPB), but the removal is appealable
to the MSPB. The agency informed complainant that the matter of his
removal was assigned Agency No. 1G-755-0014-02 and PS Form 2564-A was
enclosed for complainant to complete and submit to the EEO Office.
On January 14, 2002, complainant submitted PS Form 2564-A to the agency.
Complainant indicated that he had been discriminated against on the bases
of race (unspecified), age (unspecified), and in reprisal for his previous
EEO activity under Title VII and the Age Discrimination in Employment Act
when he was removed from employment. On February 22. 2002, the agency
mailed complainant a Notice of Right to File Mixed Complaint. On March 5,
2002, complainant filed an appeal of his removal with the MSPB.
By decision dated August 28, 2002, the agency dismissed this matter
pursuant to 29 C.F.R. �1614.107(a)(2) on the grounds that complainant
failed to file a complaint in a timely manner, and pursuant to 29
C.F.R. �1614.107(a)(4) on the grounds that complainant elected to proceed
before the MSPB. The agency determined that complainant received
the Notice of Right to File Mixed Complaint on February 28, 2002.
The agency stated that complainant never filed a formal EEO complaint
and that instead, he filed an appeal with the MSPB on March 5, 2002.
The agency determined that complainant's submission of PS Form 2564-A
did not constitute the filing of a formal complaint. The agency noted
that the form is entitled �Information for Precomplaint Counseling�.
Upon review of the record, including the arguments presented on appeal
by complainant and the response thereto by the agency, we find that
complainant failed to file a formal complaint in a timely manner.
Complainant does not dispute the agency's position that on February
22, 2002, the agency forwarded him a Notice of Right to File Mixed
Complaint, and the Notice was received by him on February 28, 2002.
Complainant does not dispute that he was informed that he had fifteen
(15) days from his receipt of the Notice to file a formal complaint.
We find that the argument presented by complainant's attorney that
complainant filed a formal complaint in January 2002 when he submitted
the form entitled �Information for Precomplaint Counseling� is not
persuasive and it is also insufficient to justify complainant's failure
to file a formal complaint within 15 days of having received the Notice
of Right to File Mixed Complaint. We find that complainant failed to
file a formal complaint within the 15-day filing period. Accordingly,
the agency's dismissal of the complaint was proper and is AFFIRMED.<1>
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 15, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In light of our affirmance of the agency decision on this grounds,
we need not address the agency's alternative grounds for dismissal.