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.
??
??
??
??
2
0120070081
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120070081