01990888
01-14-2000
Benjamin Porter, Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Benjamin Porter, Jr., )
Complainant, )
)
v. ) Appeal No. 01990888
) Agency No. 1-F-914-0027-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 11, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
October 15, 1998, pertaining to 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.<1> In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American), and in reprisal for prior EEO activity when:
Complainant was accused of standing outside the Computer Forwarding
Unit with his arm around a clerk;
Complainant was accused of failing to follow reasonable work rules of
conduct and entering personnel without authorization; and
Complainant was issued a Letter-of-Warning (LOW).
The agency dismissed complainant's claims for failure to file a timely
formal complaint. Specifically, the agency found that complainant
received his notice-of-right-to-file-a-complaint form (Notice) on July 27,
1998, but did not file his complaint until sixteen days later, on August
12, 1998.
Complainant raised no arguments on appeal regarding the timeliness of
his formal complaint.
The record includes a copy of the Notice, which informs complainant
that he has fifteen (15) days to file a formal complaint. A certified
receipt card shows that complainant received the Notice on July 27, 1998.
The record also includes a copy of complainant's formal complaint,
stamped as received by the Santa Clara EEO office on August 12, 1998.
The complaint arrived in an envelope addressed to the agency's Ingelwood
EEO office, but does not include a stamp, postmark, or other evidence
showing that it was mailed.
EEOC Regulation 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 formal
complaint. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency
shall dismiss a complaint that fails to comply with the applicable time
limits contained in �� 1614.105, 1614.106, and 1614.204(c), unless the
agency extends the time limits in accordance with � 1614.604(c).
A document is deemed to have been filed on the date it is received
or postmarked. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
and hereinafter cited as 29 C.F.R. �1614.604(b)). If the document was
mailed, but the postmark is illegible, then the document is considered
timely if it was received within five days of the expiration of the
applicable filing period. Id.
Absent any evidence that complainant's formal complaint was mailed,
the Commission assumes that it was delivered by some other means,
and considers the complaint filed on the date it was received, August
12, 1998. In order to be timely, complainant should have filed his
complaint by Tuesday, August 11, 1998. Complainant has provided no
argument to justify tolling the applicable time limit. Accordingly,
the agency's dismissal is AFFIRMED.
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 (S1199)
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:
January 14, 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 Assistant 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.