01981565
10-27-1998
Bruce A. Dulin v. United States Postal Service
01981565
October 27, 1998
Bruce A. Dulin, )
Appellant, )
)
v. ) Appeal No. 01981565
) Agency No. 1F-903-1018-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DISMISSAL OF APPEAL
On December 10, 1997, appellant filed an appeal with the Commission from
the April 11, 1996 final agency decision dismissing appellant's complaint
for failure to state a claim. By regulation, appeals to the Commission
must be filed within thirty (30) calendar days after an appellant or his
representative receives notice of the final agency decision. Appeals are
deemed filed on the date received by the Commission, unless postmarked
earlier. 29 C.F.R. �1614.604(b).
In this case, the record indicates that the final agency decision was
mailed via certified mail to appellant's attorney of record on April 11,
1996. The certified mail return receipt was signed on April 15, 1996.
Appellant's appeal was postmarked December 10, 1997 and was received
by the Commission on December 17, 1997. The appeal was, therefore,
beyond the thirty (30) day time limit set by EEOC Regulations. On appeal,
appellant asserts that he is no longer represented by counsel and that
he did not receive a copy of the agency's FAD until November 22, 1997.
The record indicates that the FAD was received by appellant's attorney of
record on April 15, 1996. The record further indicates that appellant
was represented by counsel until November 3, 1997. In that regard,
the Commission is not persuaded by appellant's assertions that he was
not given a fair opportunity to file a timely appeal of the agency's
final decision. Therefore, appellant's appeal is hereby DISMISSED.
See 29 C.F.R. ��1614.402 and 1614.604.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations