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.