01a54603
12-02-2005
David J. Needham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David J. Needham v. United States Postal Service
01A54603
December 2, 2005
.
David J. Needham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54603
Agency No. 1G-761-0008-04
Hearing No. 310-2005-00112X
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's final
action dated May 13, 2005, which implemented an EEOC Administrative
Judge's decision finding no discrimination concerning his complaint of
unlawful employment discrimination. The record indicates that complainant
filed his complaint, dated December 16, 2003, alleging discrimination
based on race, age, disability, and in reprisal for prior EEO activity
when: repeatedly over 2 years, he was harassed by his MDO when unfairly
accused of things he did not do, he was embarrassed in front of coworkers,
and he was unable to take a lunch break for 2 years; and, on October 8,
2003, he was issued a letter of warning charging him with unacceptable
attendance due to job related stress and a hazardous work environment.
EEOC Regulation 29 C.F.R. � 1614.402 provides that appeals to the
Commission must be filed within 30 calendar days after a complainant
receives notice of the agency's decision. In his Notice of Appeal,
complainant admits that he received the agency's final action on May
17, 2005. The appeal was postmarked June 20, 2005, which was beyond the
thirty (30) day time limit set by the regulations. The record reveals
that the agency's decision explicitly informed complainant of the time
limits on his right to appeal. On appeal, complainant contends that
his appeal was delayed due to his hospitalization during the first 2
weeks of June 2005, and because his representative was out of town due
to a death in his family. However, complainant does not provide any
evidence that he was so physically or emotionally incapacitated as to
be unable to file a timely appeal. Upon review, the Commission finds
that complainant fails to submit adequate justification to invoke waiver
or equitable tolling for filing the appeal. Accordingly, the appeal is
DISMISSED as untimely pursuant to � 1614.403(c).
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
December 2, 2005
__________________
Date