01992092
01-19-2000
Barry F. Dashner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Barry F. Dashner, )
Complainant, )
)
v. ) Appeal No. 01992092
) Agency No. 1B-021-0079-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On January 14, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
December 15, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts
complainant's appeal in accordance with EEOC No. 960.001.
ISSUE PRESENTED
The issue presented herein, is whether the agency properly dismissed
the present complaint for failure to file the formal complaint within
fifteen days of receiving the notice to go formal and whether the agency
also properly dismissed claim one for failure to initiate timely contact
with an EEO Counselor.
BACKGROUND
The record reflects that on July 15, 1998, complainant initiated contact
with an EEO Counselor. During the counseling period, complainant
claimed to have been discriminated against when: (1) on May 30, 1998,
he was placed in emergency off-duty status without pay; (2) on June 8,
1998, he was brought to the Inspection Service Office and accused of
stealing; (3) on July 20, 1998, he was issued a notice of suspension;
(4) he has removed from his assignment from June 9, 1998 through June 12,
1998; and (5) he was denied overtime.
Unable to resolve the above matter informally, complainant requested
the right to file a formal complaint. On October 15, 1998, an EEO
Counselor issued complainant his notice to file a formal complainant of
discrimination. Thereafter, complainant filed his formal complaint on the
matters for which complainant underwent EEO counseling, discussed above.
On November 13, 1998, the agency issued a final decision dismissing
the above complaint for failure to file the formal complaint within
fifteen days from receiving the right to go formal. The agency found
that complainant received the notice to file a formal complaint on
October 15,1998 and filed his formal complaint on October 31, 1998.
Therefore, in excess of the fifteen-day limitations period. Furthermore,
the agency dismissed claim (1) for failure to initiate timely contact with
an EEO Counselor. Here, the agency found that the alleged discriminatory
action took place on May 30, 1998, and complainant initiated contact
with an EEO Counselor on July 15, 1998, which was more than forty-five
days after the event took place.
The record contains a copy of the envelope in which the formal complaint
was mailed. The envelope contains a date stamp made by a franking
machine of October 30, 1998, and is postmarked October 31, 1998.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) provides that a complaint
must be filed within 15 days of receipt of the notice of the right
to file. Volume 64 Fed. Reg. 37, 644, 37, 661 (1999)( to be codified
and hereinafter referred to as 29 C.F.R. � 1614.604(b)) provides that a
document shall be deemed timely if it is received or postmarked before
the expiration of the applicable filing period.
In the present case, complainant received the notice of right to file
a formal complaint on October 15, 1998, which informed him of his
right to file a complaint within 15 days of his receipt of the notice.
Complainant filed his formal complaint by mail on October 31, 1998,
based on the postmark. It is well-settled, that when the Commission
must determine the timeliness of a complaint which contains a date from a
franking machine, as well as a postmark date, the Commission will rely on
the postmark date. See Esteban-Popp v. The United States Postal Service,
EEOC request No. 05880803 (1988). Therefore, the instant complaint was
untimely filed pursuant to 29 C.F.R. � 1614.106(b).
Accordingly, the agency's final decision dismissing the present complaint
for failure to file the formal complaint within fifteen-days of receipt
of the notice to file a formal complaint was proper and is hereby
AFFIRMED.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
January 19, 2000
Date Carlton M. Hadden, Acting 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 Equal Employment Assistant1On 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.
2Since the Commission has affirmed the dismissal of the instant complaint
for failure to timely file the formal complaint, we need not address
the agency's alternative grounds for dismissal of claim (1).