Anthony J. Ortiz, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 19, 2000
01a01844 (E.E.O.C. Oct. 19, 2000)

01a01844

10-19-2000

Anthony J. Ortiz, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Anthony J. Ortiz v. United States Postal Service

01A01844

October 19, 2000

Anthony J. Ortiz, )

Complainant, )

)

v. ) Appeal No. 01A01844

) Agency No. 4E-870-0130-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his 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., the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and � 501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>

The final agency decision was dated December 8, 1999. The appeal

was postmarked December 30, 1999. Accordingly, the appeal is timely

(see 29 C.F.R. � 1614.402 (a)), and is accepted in accordance with 29

C.F.R. � 1614.405.

The issue on appeal is whether the agency properly dismissed complainant's

complaint on the grounds that he failed to timely file a written complaint

upon receiving notice of his right to file.

29 C.F.R. � 1614.106(b) requires the filing of a written complaint with

an appropriate agency official within fifteen (15) calendar days after

the date of receipt of the notice of the right to file a complaint.

Complaints are deemed filed when received by an appropriate agency

official, unless postmarked earlier. 29 C.F.R. � 1614.604(b).

29 C.F.R. � 1614.107(a)(2) provides, in pertinent part, that the agency

shall dismiss a complaint or a portion of a complaint that fails to

comply with the applicable time limits contained in � 1614.106 unless

the agency extends the time limits in accordance with � 1614.604(c).

On December 8, 1999, the agency issued a final decision dismissing

complainant's complaint on the grounds that he exceeded the fifteen (15)

day time limitation period. After a careful review of the record, the

Commission finds that complainant's complaint was filed in an untimely

manner. The record indicates that complainant received notice of his

right to file a formal complaint on September 27, 1999. <2> We further

note that the document specifically informed complainant that he only

had 15 days to file any subsequent complaint. Complainant, however,

did not file his formal complaint until November 5, 1999, or 23 days

after the time limitation period expired.

The Commission must next determine whether the complainant has submitted

an adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for

extending or waiving the time limitation period. On appeal, complainant's

attorney, B-1, argued that the time limitation period should be equitably

tolled. According to B-1, complainant first sought his representation

on October 12, 1999. This was the last day that he could timely file his

complaint. B-1 stated that he spoke to an agency official, on that same

day, and requested an extension. He was told, however, that an extension

could not be granted. Thereafter, B-1 maintained that he discovered he

had been misled about the time limitation period. B-1 stated that:

[I]n point of fact, 29 C.F.R. � 1614.604(b) provides that if a mailing of

a formal complaint is received in the EO Office "within five days" of the

last date that [the] formal complainant was otherwise due, the same shall

be considered to be a timely filing. Secondly, 29 C.F. R. � 1614.604(a)

contemplates that certain days are excluded from the computation of days

when a formal complaint must be responded to, or the first day following

the actual mailing day begins the 15 day count, not the actual mailing

day and the exclusion of a federal holiday, or in this case October 11,

1999 as Columbus Day. And thirdly, 29 C.F.R. � 1614.604(c) further

provides that the �time limits ... are subject to waiver, estoppel,

or equitable tolling.'

We find that complainant has not provided an adequate justification

for extending or waiving the 15-day time limitation period. First, 29

C.F.R. � 1614.604(b) does not apply to this situation. The provision

provides that, "[i]n the absence of a legible postmark, [a document

shall be deemed timely] if it is received by mail within five days of

the expiration of the applicable filing period." Because complainant's

formal complaint was postmarked November 5, 1999, this provision is

not applicable here. With respect to complainant's second contention,

B-1 failed to explain the significance of the provision he cited.

Complainant received the notice on September 27, 1999. Therefore, the

formal complaint was due on Tuesday, October 12, 1999. Contrary to B-1's

assertion, Monday, October 11, 19999, was not excluded. Federal holidays

are only excluded when they fall on the last day of a filing period.

Finally, we find that complainant has failed to present any persuasive

justification for waiving or equitably tolling the 15-time limitation

period. Complainant did not contact B-1 until the final day that he

could timely file his complaint. Although B-1 maintained that he was given

"misleading" information about the filing period, he failed to indicate

how this information affected his ability to file the complaint in a

timely manner. Finally, B-1 failed to indicate why, after he was told

that an extension could not be granted, he did not attempt to submit

complaint's complaint on October 12, 1999. B-1's affidavit seems

to indicate that no further action was taken on this matter until he

discovered the above information.

The decision of the agency was proper and it is AFFIRMED.

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:

___10-19-00___________ __________________________________

DATE Carlton M. Hadden, Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the 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

2The record contains a copy of a certified mail return receipt that

indicates the notice was received by complainant at his home.