Daniel F. Seper, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01985184 (E.E.O.C. Sep. 10, 1999)

01985184

09-10-1999

Daniel F. Seper, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Daniel F. Seper v. Department of the Air Force

01985184

September 10, 1999

Daniel F. Seper, )

Appellant, )

)

v. ) Appeal No. 01985184

) Agency No. SF1L96034

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

_______________________________)

DECISION

Appellant filed an appeal with the Commission from a final decision of the

agency concerning his complaint of unlawful employment discrimination. The

appeal was filed via facsimile on June 19, 1998.

By regulation, appeals to the Commission must be filed within thirty (30)

calendar days after the appellant receives the final agency decision

(FAD). 29 C.F.R. �1614.402(a). If the appellant is represented by an

attorney of record, the 30-day time period shall be calculated from the

receipt of the required document by the attorney. In all other instances,

the time within which to file the appeal shall be calculated from the

receipt of the FAD by the appellant. 29 C.F.R. �1614.402(b).

The record reveals that the FAD was received at appellant's address of

record on May 15, 1998. The file contains a certified mail return receipt

signed by an unidentified individual at appellant's address on that date.

Where such a receipt has been signed by an unidentified individual

at the complainant's address, the Commission has found that there is

a presumption of constructive receipt on that date, of the document,

by appellant. See Pazinick v. USPS, EEOC Request No. 05930337 (September

10, 1993); and Knowles v. Department of Defense, EEOC Request No. 05920956

(March 18, 1993). Although this presumption is rebuttable, appellant has

presented no evidence demonstrating that the individual who signed for his

mail was not a family or household member of suitable age or discretion

to do so. See Fontanella v. GSA, EEOC Request No. 05940131 (April 10,

1995); Baunchard v. USPS, EEOC Request No. 05920389 (May 29, 1992).

A review of the agency's FAD indicates that appellant was properly

notified of the time, place, and procedure for filing a timely appeal

with the Commission. Therefore, based on the evidence before us, we

find that appellant did not file his appeal in a timely manner.

On appeal, appellant stated that he was "[o]ut of town for a long

period of time and did not receive" the decision on the date that it

was delivered to his home. We find that appellant has not provided an

adequate justification for applying the equitable tolling provisions

of 29 C.F.R. �1614.604(c). In particular, appellant did not provide

details concerning: (1) the reason he was out of town, for example,

was it an unexpected emergency; or (2) the date he returned to his

home. Consequently, we are unable to determine if he had a sufficient

amount of time, upon his return, to file his appeal in a timely manner.

Accordingly, for the foregoing reasons, we find that appellant's appeal

is untimely and it is DISMISSED.

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. 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:

September 10, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations