01A31009_r
03-24-2003
Cedric L. Prince, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cedric L. Prince v. United States Postal Service
01A31009
March 24, 2003
.
Cedric L. Prince,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31009
Agency No. 1E-661-0005-02
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American) and sex (male) when:
On May 28, 2002, complainant was terminated for AWOL and violating the
terms of his last chance agreement.
The regulation set forth at 29 C.F.R. � 1614.106, requires the filing of a
formal complaint within 15 days of receiving notice of the right to do so.
Under 29 C.F.R. � 1614.604(d), the time period for the filing of a formal
complaint is counted from the first day after the receipt of the notice
of right to file a formal complaint and includes the last day of the
15-day period, unless it falls on a Saturday, Sunday, or Federal Holiday,
in which case the period is extended to include the next business day.
In the present case, the record indicates that the notice of right to file
a formal complaint was received by complainant on May 10, 2002, making the
final day of the 15-day period for filing Saturday, May 25, 2002. As the
period ended on a Saturday, however, the period for filing was extended
to include the next business day, or until Tuesday May 28, 2002 (May 26,
2002 was a Sunday, and May 27, 2002 (Monday) was a Federal holiday).
In the present case, complainant's complaint was sent via regular mail.
As stated above, in order to be considered timely, the complaint had to
be filed on or before May 28, 2002. The postmark indicates the complaint
was mailed on an unspecified date in May 2002.
The regulation set forth at 29 C.F.R. � 1614.604(b) states that a
document shall be deemed timely if it is received or postmarked before
the expiration of the applicable filing period, or, in the absence of
a legible postmark, if it is received by mail within five days of the
expiration of the applicable filing period.
In the present case, we are unable to determine from the postmark
whether the complaint was mailed on or before May 28, 2002. Since the
envelope contained an illegible postmark, in order to be timely filed,
the complaint had to be received by the agency at the latest by June 3,
2002.<1> The record reveals that the agency did not receive the complaint
until June 24, 2002, which was beyond the applicable limitations period.
On appeal, complainant has not offered adequate justification to warrant
an extension of the time limit for filing the complaint. Accordingly, the
agency's final decision dismissing complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 24, 2003
__________________
Date
1The fifth day following the expiration of
the filing period fell on June 2, 2002, which was a Sunday, requiring
the extension of the applicable filing period to the next business day,
or Monday, June 3, 2002. 29 C.F.R. � 1614.604(d).