01983821
06-04-1999
Cenobio Donate, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Cenobio Donate v. United States Postal Service
01983821
June 4, 1999
Cenobio Donate, )
Appellant, )
) Appeal No. 01983821
v. ) Agency No. 98-4087
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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., the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. �621 et seq., and �501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. The appeal is accepted
in accordance with EEOC Order No. 960, as amended.
ISSUES PRESENTED
The issues on appeal are whether the agency properly dismissed appellant's
complaint for untimely filing of a formal complaint and for failure to
initiate timely contact with an EEO counselor.
BACKGROUND
Appellant filed a formal complaint on February 3, 1998, alleging
discrimination on the bases of race (Hispanic), sex (male), age (d.o.b.;
February 23, 1945), physical disability (unspecified), and reprisal
(prior EEO activity) when:
(1) his manager suggested that he resign from the agency and denied
him union representation in a meeting on April 16, 1997;
his manager yelled at him in front of other employees on May 1, 1997;
he received a negative performance recordation on October 15, 1997;
he received an opportunity letter on January 7, 1998; and
he was removed from a flexiplace tour of duty on January 15, 1998;
In its final agency decision, the agency dismissed allegations (1)-(4)
for failure to file a timely complaint upon concluding that the appellant
received the Right to File notice on January 17, 1998 and did not file a
formal complaint until February 3, 1998, two days beyond the applicable
time limits mandated by 29 C.F.R �1614.106(b). Allegation (5) was
dismissed for failure to initiate timely contact with an EEO counselor
because this matter was never raised in the counseling phase. This
appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) provides that a formal complaint
must be filed within 15 days of receipt of the notice of the right to file
a discrimination complaint. In determining when the 15-day period starts
to run, the Commission previously has held that receipt of a document at
a complainant's correct address by a member of the complainant's household
or family of suitable age and discretion constitutes constructive receipt
by complainant. See, e.g., Baunchand v. United States Postal Service,
EEOC Request No. 05920389 (May 29, 1992).
The evidence in the file reveals that the Notice of the Right to File was
received at appellant's correct address. Additionally, since the signer
and appellant have the same last name, the Commission presumes that the
document was received by a member of appellant's household or family.
Accordingly, allegations (1)-(4) were dismissed properly on �1614.106(b)
grounds.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
In the present case, the Commission finds that the appellant failed to
seek counseling for the action leading up to allegation (5). Since the
45-day time limit had elapsed by the time appellant filed his formal
complaint, the point at which he first complained of being removed from
a flexiplace tour of duty, the Commission concludes that he failed to
comply with the applicable time limits contained within �1614.105(a)(1).
Accordingly, the decision of the agency was proper and is, therefore,
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
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. 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 (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:
June 4, 1999
______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations