0120113469
02-08-2012
Tracey L. Thompson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Tracey L. Thompson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120113469
Agency No. 1F-941-0045-11
DECISION
Complainant filed an appeal with this Commission from the Agency's
Final Decision dated June 6, 2011, dismissing her 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq. For the following reasons, we
AFFIRM the Agency’s Final Decision dismissing Complainant’s complaint
pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of
the complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Part time Regular Mail Handler at the Agency’s facility in San
Francisco, California. On May 18, 2011, Complainant filed a complaint
alleging that the Agency subjected her to discrimination on the bases
of sex, disability, and in reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 and Section 501 of the
Rehabilitation Act of 1973 when:
On March 3 and 4, 2011, Complainant's supervisor accused her of taking
numerous breaks and watched and timed Complainant when she went to
the restroom.
In its decision, among other things, the Agency found that Complainant
filed her complaint beyond the 15-day time limit. Agency’s Dismissal
of Formal EEO Complaint, June 6, 2011. Record on Appeal (ROA) at 14.
The Agency therefore dismissed the complaint pursuant to 29 C.F.R. §
1614.107(a)(2).
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, 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, which, in turn, requires the filing of a formal complaint
within 15 days of receiving notice of the right to do so.
The record discloses that Complainant received the notice of right to
file a formal complaint on April 30, 2011. ROA at 4, 5, 6. The notice
indicated that Complainant had to file a formal complaint within fifteen
calendar days of its receipt. We note that the 15th day after receipt
of the Notice, fell on Sunday, May 15, 2011. To be timely filed,
Complainant’s complaint should have been filed no later than Monday,
May 16, 2011. The record shows that Complainant did not file her formal
complaint until May 18, 2011, which is beyond the limitation period.
Id. at 4. On appeal, Complainant has not offered adequate justification
to warrant an extension of the time limit for filing the complaint.
CONCLUSION
The Agency's Final Decision dismissing Complainant's complaint pursuant
to 29 C.F.R. §1614.107(a)(2) is AFFIRMED.
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
February 8, 2012
__________________
Date
2
0120113469
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013