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.