Danilo Sarne, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 15, 2000
01990707 (E.E.O.C. Feb. 15, 2000)

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).