Barrington Phillips, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.

Equal Employment Opportunity CommissionDec 6, 2000
01980118 (E.E.O.C. Dec. 6, 2000)

01980118

12-06-2000

Barrington Phillips, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast Area) Agency.


Barrington Phillips v. United States Postal Service

01980118

December 6, 2000

.

Barrington Phillips,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(Southeast Area)

Agency.

Appeal No. 01980118

Agency No. 4H-330-0130-97

DECISION

Complainant filed a timely appeal with this Commission from an agency's

final decision (FAD) dated September 16, 1997, dismissing his complaint

of unlawful employment discrimination in violation of Rehabilitation

Act of 1973<1>, as amended, 29 C.F.R. � 791 et seq.<2> In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (Black), sex (male), and disability (back injury) when on October

10, 1996, his request for a light duty assignment was denied.

The agency dismissed complainant's claim pursuant to 29 C.F.R. �

1614.105(d), which requires the complainant or his/her representative to

submit a written complaint to an appropriate agency official within 15

days of receiving the Notice of Right to File an Individual Complaint.

The agency found that the Report of Counseling indicates that complainant

received a Final Interview Notice on May 14, 1997, but he did not file

his formal complaint with the agency until June 7, 1997. The agency

further found that since complainant failed to comply with 29 C.F.R. �

1614.105(d), his complaint was dismissed as untimely.

A review of the record reflects that complainant was informed in his

Final Interview Notice, which he received on May 14, 2000, that he

was required to file Form 2565, EEO Complaint of Discrimination in the

U.S. Postal Service, within fifteen (15) days of receipt of the Final

Interview Notice and Notice of Right to File Individual Complaint. Thus,

complainant was required to submit Form 2565 by May 29, 1997, but did

not submit it until June 7, 1997. Complainant contends on appeal that he

and his representative were on annual leave at the time he received the

agency's Final Interview Notice and he was unable to complete Form 2565

until he returned to work following the Memorial Day holiday. However,

the record reflects that the agency's certified letter was signed for

at complainant's home on May 14, 1997, well before Memorial Day weekend,

and included a copy of Form 2565. In order to file his formal complaint,

complainant was merely required to timely complete and return Form 2565,

yet he failed to do so. As a result, we agree with the agency's decision

to dismiss the instant complaint as untimely filed and AFFIRM the agency's

FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 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 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

(R0900)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court within ninety (90) calendar days from the date

that you receive this decision. In the alternative, you may file a

civil action after one hundred and eighty (180) calendar days of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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

December 6, 2000

__________________

Date

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2On 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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.