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.