01994294
09-05-2000
Annie L. Herling, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Annie L. Herling v. United States Postal Service
01994294
September 5, 2000
.
Annie L. Herling,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994294
Agency No. 1-J-603-0022-99
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The Commission accepts the appeal in
accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29
C.F.R. �1614.405).
On October 9, 1998, complainant contacted the EEO office regarding claims
of discrimination based on religion and reprisal. Informal efforts to
resolve complainant's concerns were unsuccessful. On January 8, 1999,
complainant filed a formal complaint. The agency framed complainant's
claim as follows:
In October 1996 and October 1997, complainant's supervisor had decorated
the DBCS Area with Halloween decorations.
On February 11, 1999, the agency issued a decision dismissing the
complaint on the grounds that complainant's EEO Counselor contact was
untimely and that the complaint was untimely filed. Specifically,
the agency determined that although complainant should have contacted
the EEO office within forty-five days of the alleged incidents, she did
not do so until November 4, 1998. The agency further determined that
complainant signed for the Notice of Right to File on December 23, 1998,
and that she filed her complaint on January 8, 1999, one day past the
fifteen day time limitation.
On appeal, complainant argues that the 1996 and 1997 incidents were
provided merely as background information. According to complainant,
the alleged incident occurred on October 8, 1998, when she became aware
of her supervisor's Halloween decorations. Regarding the dismissal
of the complaint on the grounds that it was untimely filed, complainant
argues that because the envelope did not contain a legible postmark, an
additional five days must be added to the fifteen day time limitation,
making the last day for timely filing January 12, 1999. Complainant
argues that because the complaint was received by the agency on January
11, 1999, it was timely filed.
The record reflects that complainant received a notice of the right to
file a formal complaint on December 23, 1998, informing her that she had
fifteen days from the date of receipt of the notice in which to file a
timely complaint. The record contains a copy of complainant's complaint,
with a postmark date of January 8, 1999, which is beyond the fifteen
day limitation period for timely filing a complaint. Complainant has
failed to present adequate justification for extending the limitation
period beyond fifteen days. Accordingly, the agency's decision to
dismiss the complaint was proper for the reasons set forth herein and
is hereby AFFIRMED.
Because we affirm the agency's decision to dismiss the complaint on the
grounds that it was untimely filed, we find it unnecessary to address
the agency's decision to dismiss the complaint on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 5, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.