0120083749
01-20-2011
Charles R. Hartman, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Charles R. Hartman,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120083749
Agency No. 4E-640-0006-08
DISMISSAL OF APPEAL
By Notice of Appeal postmarked August 29, 2008, Complainant filed an appeal with this Commission from the July 10, 2008 final agency decision concerning his EEO 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 DISMISSES Complainant's appeal.
BACKGROUND
In a complaint filed with the Agency, Complainant alleged:
1. Discrimination based on his disability (diabetes) when on October 15, 2007, he was denied FMLA paperwork; denied reasonable accommodations; and was terminated from his casual position; and
2. Discrimination in reprisal for prior protected EEO activity when on November 8, 2007, he was denied a TE position at the Carterville Post Office.
The Agency issued a final decision on his complaint dated July 10, 2008. Complainant indicated on his Appeal Form that he received a copy of the Agency's decision on July 13, 2008. Complainant's appeal to the Commission is postmarked August 29, 2008.
On appeal, Complainant claims that he sent his appeal on August 6, 2008, and states that it spent several days in a warehouse in D.C. before being returned. He states it then sat at Office Max where he sent it from until they finally opened it, found his phone number, and called him on August 26, 2008, to come and pick it up. Complainant included a shipment label from DHL to Office Max Retail dated August 8, 2008. Complainant requests his appeal be considered timely since the delivery company was the one that did not deliver it.
ANALYSIS AND FINDINGS
A review of the Agency decision reveals that the Agency properly advised Complainant that he had thirty calendar days after receipt of its final decision to file his appeal with the Commission. Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal. Complainant has also not shown that he attempted to mail the appeal to the correct address within the 30-day time limit. Thus, Complainant's appeal is dismissed as untimely filed. See 29 C.F.R. � 1614.403(c)
CONCLUSION
Accordingly, Complainant's appeal is DISMISSED.
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
1/20/11
__________________
Date
2
0120083749
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013