Deborah A. Mitchell, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01990257 (E.E.O.C. Oct. 5, 1999)

01990257

10-05-1999

Deborah A. Mitchell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Deborah A. Mitchell v. United States Postal Service

01990257

October 5, 1999

Deborah A. Mitchell, )

Appellant, )

)

)

v. ) Appeal No. 01990257

) Agency No. 4-K-200-0107-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On October 15, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated September 23, 1998, pertaining

to her complaint of unlawful employment discrimination in violation

of �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791

et seq. In her complaint, appellant alleged that she was subjected to

discrimination on the bases of mental disability (depression) and physical

disability (back and neck) when on February 6, 1998, management revoked

the accommodation to appellant's combined disabilities and appellant

was sent off-duty.

The agency dismissed appellant's allegation pursuant to EEOC Regulation 29

C.F.R. �1614.107(b), for failing to file her formal complaint in a timely

manner. Specifically, the agency found that appellant received a copy of

her Notice of Right to File an Individual Complaint of Discrimination

(hereinafter "Notice") on May 15, 1998, but did not file a formal

complaint until June 4, 1998.

On appeal, appellant argues, through her attorney, that she was

not represented by counsel when she received the notice in May, but

subsequently acquired representation on May 25, 1998. Appellant explains

that her attorney was unable to meet with her until June 4, 1998, and

helped her complete her formal complaint form at that time. Further,

appellant argues that, as evidenced by a letter dated August 21, 1998,

her attorney received from the agency, appellant did not receive a copy

of the Notice on May 15, 1998.<1>

In response, the agency argues that appellant's lack of representation

until after appellant received the Notice does not waive the time

limitation for appellant to file a formal complaint. Further, the agency

asserts that appellant received a copy of the Notice on May 15, 1998.

The record on appeal includes a copy of the Notice, signed by appellant

on June 4, 1998. The record includes a certified receipt card for the

Notice, signed and dated by appellant on May 15, 1998. The record also

contains a copy of appellant's formal complaint, dated June 4, 1998.

EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written

complaint with an appropriate agency official within fifteen (15)

calendar days after the date of receipt of the notice of the right

to file a complaint required by 29 C.F.R. �1614.105(d), (e) or (f).

EEOC Regulation 29 C.F.R. �1614.605(d) provides that when appellant

designates an attorney as her representative, "service of documents

. . . shall be made to the attorney" and time frames for receipt of

materials by appellant shall be computed from the time of receipt by

the attorney.

EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall

dismiss a complaint or a portion of a complaint that fails to comply

with the applicable time limits contained in ��1614.105, 1614.106, and

1614.204(c), unless the agency extends the time limits in accordance

with �1614.604(c).

The record in this case indicates that appellant received the Notice

on May 15, 1998. Appellant's contention that she did not receive a

copy of the Notice until August 1998, is not credible, given that the

record contains a copy of the notice signed and dated by appellant on

June 4, 1998. It appears that appellant's attorney did not receive a

copy of the Notice until August 1998. However, the Commission finds

that appellant's receipt of the Notice, not the attorney's receipt,

governs the timeliness of appellant's complaint, because appellant

did not designate an attorney as her representative until after she

received a copy of the Notice. See Vega v. Department of the Treasury,

EEOC Appeal No. 01945558 (Feb. 23, 1995) recons. den. 05950449 (Dec. 14,

1995) (timeliness calculated from appellant's receipt of the Notice when

appellant retained an attorney after receiving the Notice.) Further,

the record indicates that the Notice informed appellant that she had 15

days from the date of receipt of the Notice in which to file a formal

complaint, but that appellant did not file until June 4, 1998. Therefore,

appellant failed to file her complaint within 15 days.

Appellant's inability to meet with her attorney until after the

expiration of the 15-day time limitation does not justify an extension

of the limitation period. See 29 C.F.R. �1614.605(e) (appellant is

responsible for proceeding with complaint at all times regardless of

representation); see also Knox v. United States Parcel Service, EEOC

Appeal No. 01973386 (Oct. 20, 1997). Accordingly, appellant failed to

present adequate justification, pursuant to 29 C.F.R. �1614.604(c),

for extending the filing period, and the agency's decision is 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:

October 5, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1The August 21, 1998 letter from the agency states that appellant's

attorney would be provided a copy of the Notice because the attorney

claimed not to have received it, even though appellant initially received

a copy of the Notice on May 15, 1998.