01990707
02-15-2000
Danilo Sarne, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Danilo Sarne v. United States Postal Service
01990707
February 15, 2000
Danilo Sarne, )
Complainant, )
)
v. ) Appeal No. 01990707
) Agency No. 4F-940-0136-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency 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.<1> The final agency decision was received
by complainant on October 1, 1998. The appeal was postmarked October
27, 1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at and hereinafter referred to as 29
C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
Complainant contacted an EEO counselor on May 26, 1998, regarding
claims of discrimination. Specifically, complainant alleged that he was
discriminated against when he was issued a 7-day suspension on February
14, 1998 and a 14-day suspension on April 8, 1998 for unsafe acts.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on July 18, 1998, complainant filed a formal complaint
alleging that he was the victim of unlawful employment discrimination
on the bases of race, national origin, sex, age, and reprisal.
On September 23, 1998, the agency issued a final decision dismissing
complainant's complaint as untimely. Specifically, the agency determined
that complainant had failed to file his formal complaint within fifteen
(15) days from the date of his receipt of the notice in which to file
a formal discrimination complaint.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within 15 calendar days
after the date of receipt of the notice of right to file a complaint
required by 64 Fed. Reg. 37,644 37,656 (1999)(to be codified at and
hereinafter referred to as 29 C.F.R. �1614.105(d), (e), or (f).
In 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.107(a)(2), the regulations provide that
the agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the applicable time limits for filing, unless the
agency extends the time limits in accordance with EEOC Regulations.
The record herein indicates that on June 25, 1998, complainant received
via certified mail, an agency document entitled "Notice of Right to
File Individual Complaint" informing him of his right to file within 15
days of his receipt of the Notice. Accordingly, complainant's complaint
would be timely filed on July 10, 1998. The record indicates, however,
that complainant's complaint was postmarked July 18, 1998. Complainant
failed to timely file his formal complaint pursuant to EEOC Regulations.
On appeal, complainant offers no explanation for the delay in filing his
complaint. Accordingly, the agency's decision dismissing complainant's
complaint as untimely, is hereby AFFIRMED for the reasons set forth
herein.<2>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 at and hereinafter
referred to as 29 C.F.R. �1614.405). 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 at 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
February 15, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________ ________________________________
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.
2The Commission notes that the envelope containing complainant's
complaint has a metered date of June 29, 1998, as well as a postmark of
July 18, 1998. We note that when there is a conflict between a private
postage meter and a later date affixed by the post office, the postal
service date controls. See Cavanaugh v. USPS, EEOC Request No. 05920738
(January 5, 1993).