Carolyn E. Colbert, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01a02252 (E.E.O.C. May. 26, 2000)

01a02252

05-26-2000

Carolyn E. Colbert, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Carolyn E. Colbert, )

Complainant, )

)

v. ) Appeal No. 01A02252

) Agency No. 1-G-771-0006-00

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

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

decision dated January 13, 2000, dismissing her 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 her complaint,

complainant alleged that she was subjected to discrimination on the

bases of race (African-American) and sex (female) when she determined

that agency officials included misleading and harmful information in her

Office of Workers' Compensation Program (OWCP) paperwork, and management

officials refused to honor complainant's limitations relative to her

doctor's restrictions.

The agency dismissed the claims for failure to timely file a formal

complaint. Specifically, the agency found that complainant received

her Notice-of-Right-to-File-a-Formal-Complaint on October 30, 1999,

but failed to file a formal complaint until November 17, 1999.

The record includes a certified receipt card showing that complainant's

attorney received the notice on October 30, 1999. Further, the

record includes complainant's formal complaint, dated November 17,

1999. Complainant's attorney submitted a letter with the formal

complaint, explaining that the document was not timely filed due to a

misunderstanding between counsel and client.

Formal complaints must be filed within fifteen (15) days of receiving

the notice to do so. See 64 Fed. Reg. 37,644, 37,656 (1999) (to be

codified as 29 C.F.R. � 1614.106(b)). The agency may dismiss claims that

fail to comply with this time limit. See 64 Fed. Reg. 37,644, 37,656

(1999) (to be codified as 29 C.F.R. � 1614.107(a)(2)). The time limit

is subject to waiver, estoppel, or equitable tolling. See 29 C.F.R. �

1614.604(c). When a complainant is represented by an attorney, the time

frame is computed from the date of the attorney's receipt of the notice.

See 64 Fed. Reg. 37,644, 37,660 (1999) (to be codified as 29 C.F.R. �

1614.605(d)).

Complainant's attorney received the notice on October 30, 1999, and

has not presented adequate justification to toll the time limit.

Accordingly, the agency's dismissal is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 26, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.