Robert L. Veader, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120070081 (E.E.O.C. Feb. 6, 2007)

0120070081

02-06-2007

Robert L. Veader, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Robert L. Veader,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070081

Agency No. 1B-021-0019-06

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 26, 2006, dismissing his 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.

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the

untimely filing of the formal complaint. Complainant claimed that he was

subjected to discrimination based on his sex (male) when (1) on March 3,

2005, his non-scheduled days were changed, taking away his consecutive

Saturday and Sunday off, yet he learned on May 5, 2006, that a comparative

employee's days off were changed to Saturday and Sunday, and (2) on May

8, 2006, he was informed that a supervisor refused to resubmit proper

paperwork to the Department of Labor to verify his Rehabilitation status

and lied on an affidavit submitted in EEO case number 1B-021-0013-05.

A signed certificate of mailing/sending indicates that the agency mailed

the notice of right to file a formal complaint to complainant on August

1, 2006, and sent it by facsimile to his attorney the same day.1 A

facsimile transmission report indicates it was received on August 1, 2006.

The certificate of mailing advised complainant it will be presumed he

received the notice of right to file a complaint with associated documents

within five calendar days after it was mailed. Although the notice

indicated that complainant had to file a formal complaint within fifteen

(15) calendar days of its receipt, and gave the address for doing so,

complainant did not file his formal complaint until September 12, 2006.

Using either the attorney or personal complainant receipt dates, this

is beyond the 15 day limitation period.

On appeal, complainant has not offered adequate justification to warrant

an extension of the time limit for filing the complaint. Accordingly, the

agency's final decision dismissing complainant's complaint is affirmed.2

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

February 6, 2007

__________________

Date

1 It is not clear whether complainant was still represented by

his attorney when the notice of right to file a complaint was sent.

He personally filed the complaint, and is not represented by the attorney

on appeal.

2 The FAD also dismissed claim 2 on the grounds that it alleged

dissatisfaction with the processing of a previously filed complaint.

As we affirm the FAD finding that complainant untimely filed his

complaint, we need not address this other grounds for dismissal.

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0120070081

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070081