0120102147
09-03-2010
Teresa L. Bashore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Western Area), Agency.
Teresa L. Bashore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120102147
Agency No. 4E-980-0019-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 22, 2010, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint.
BACKGROUND
In her formal complaint, Complainant alleged that the Agency subjected her to discrimination on the basis of disability (back injury) when, on December 11, 2009, management failed to file her Form CA-1 with the U.S. Department of Labor's Office of Workers' Compensation Programs in a timely manner.
On January 8, 2010, the EEO Counselor mailed Complainant the following documents: (1) a Notice of Right to File letter; (2) PS Form 2579-A, Notice of Right to File Individual Complaint; (3) PS Form 2565, EEO Complaint of Discrimination in the Postal Service; and (4) PS Form 2563-B, Allegations of Discrimination Based on Age.1 Complainant received the documents on January 9, 2010, as evidenced by Postal Service signature confirmation.
The record discloses that Complainant's formal complaint was received by the Agency on March 4, 2010, having been forwarded from the Commission, where it was improperly filed. Complainant had mailed her formal complaint to the Commission, instead of to the Agency, on January 22, 2010.
In its final decision, the Agency dismissed Complainant's complaint for untimely filing of the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2). Agency's March 22, 2010, Final Decision (FAD), at 3. The Agency found that Complainant chose to file her formal complaint with the Commission, despite being duly and correctly advised of the appropriate address for filing the formal complaint. Id. at 2. The Agency alternatively dismissed Complainant's complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). Id. at 4.
CONTENTIONS ON APPEAL
On appeal, Complainant claims that the Agency erroneously found that she filed her formal complaint on March 4, 2010, and that she filed it with the wrong agency. Complainant's Appeal Brief, at 1. Instead, Complainant argues that she filed her formal complaint on January 22, 2010, and that she "filed the correct papers sent to me from the EEO." Id. In addition, Complainant argues that she mailed her formal complaint to the address listed on PS Form 2563-B, which instructed her to file age discrimination complaints with the Commission. Id. at 2. Finally, Complainant addresses the merits of her complaint. Id. at 1-4, Attachments. In response, the Agency requests that we affirm its final decision. Agency's Appeal Brief, at 1-2.
STANDARD OF REVIEW
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Ch. 9, � VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that an agency shall dismiss a complaint which 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 a complaint must be filed within 15 days of receipt of the notice of the right to do so.
The record discloses that Complainant received PS Form 2579-A, Notice of Right to File Individual Complaint on January 9, 2010, as evidenced by Postal Service signature confirmation. The Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, or by January 24, 2010. However, because January 24 fell on a Sunday, the due date was extended to the next business day, Monday, January 25, 2010, pursuant to 29 C.F.R. � 1614.604(d). In addition, the Notice indicated the proper Agency address for filing the formal complaint: NEEOISO - Formal Complaints, U.S. Postal Service, Tampa, FL 33622-1979. The Agency did not receive Complainant's formal complaint until March 4, 2010, which is beyond the limitation period.
On appeal, Complainant has not offered adequate justification to warrant an extension of the time limit for filing the complaint. Complainant asserts that PS Form 2563-B instructs her to file age discrimination complaints with the Commission. We note that PS Form 2563-B, Allegations of Discrimination Based on Age, states, "If your complaint alleges age discrimination, you may bypass the administrative complaint process by electing not to file a formal complaint and instead filing a civil action in an appropriate U.S. District Court. Before filing suit ... you must file a notice of intent to sue with [the Commission]." The language clearly indicates that Complainant should file a notice of intent to sue with the Commission only if she chooses to file a civil action and not to file a formal complaint. In addition, we note that the Agency clearly informed Complainant, in three separate documents she received on January 9, 2010, to file her formal complaint with the Agency. The Notice of Right to File letter states, "If you choose to file a formal complaint, you must complete, sign, and date PS Form 2579 and PS Form 2565 and return them to the following address: [Agency's address]. PS Form 2579-A states, "If you decide to file a formal complaint, your complaint must be put in writing ... I am providing you with PS form 2565, EEO Complaint Discrimination in the Postal Service, for this purpose. Your complaint must be delivered to: [Agency's address]. PS Form 2565 states, "Your notice of right to file contains the address where your formal complaint must be mailed or delivered."
The Commission has held that attempting to file a formal complaint with the wrong agency when properly informed of the correct filing address does not toll the filing limitation period. See Slaughter v. U.S. Postal Serv., EEOC Appeal No. 0120100411 (Apr. 15, 2010); Montes v. U.S. Postal Serv., EEOC Appeal No. 0120083134 (Dec. 18, 2008); Biggs v. U.S. Postal Serv., EEOC Appeal No. 0120072366 (July 12, 2007); Doonan v. U.S. Postal Serv., EEOC Appeal No. 0120071267 (Mar. 15, 2007). Accordingly, we find that the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 3, 2010
Date
1 Complainant did not allege the basis of age in her formal complaint, but did discuss the basis with the EEO Counselor. EEO Counselor's Report, at 1.
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0120102147
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102147