Debra Self, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 8, 2000
01A05769 (E.E.O.C. Nov. 8, 2000)

01A05769

11-08-2000

Debra Self, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Debra Self v. United States Postal Service

01A05769

November 8, 2000

.

Debra Self,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A05769

Agency No. 4E-840-0030-00

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision pertaining to her complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964 (Title VII),

as amended, 42 U.S.C. � 2000e et seq.<1> The Commission accepts the

appeal in accordance with 29 C.F.R. �1614.405.

On July 20, 2000, the agency issued a decision dismissing the complaint

on the grounds that it was untimely filed. Specifically, the agency

determined that complainant received the Notice of Right to File

Individual Complaint, stating that she must file within 15 calendar days

of receipt, on April 24, 2000. Complainant did not file the complaint

until June 9, 2000, approximately 31 days past the expiration of the

time limitation.

On appeal, complainant, through her representative, contends that she

did receive the Notice on April 24, 2000. Complainant's representative

argues that complainant determined that the letter containing the Notice

was related to an earlier complaint; that it would also be sent to her

representative; and that therefore complainant did not open it until she

met with her representative on June 9, 2000. Complainant's representative

argues that the agency was required to send him the Notice, and failed

to do so.

In response, the agency asserts that complainant's failure to open the

letter is insufficient justification for her untimeliness. Further,

the agency argues that complainant is, at all times, responsible for

proceeding with a complaint, whether or not a representative has been

designated.

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

complaint with the agency that allegedly discriminated against the

complainant within fifteen (15) calendar days after the date of receipt

of the Notice of Right to File an Individual Complaint required by 29

C.F.R. �1614.105(d), (e), or (f). A complaint is deemed timely if it is

received or postmarked before the expiration of the applicable filing

period, or in the absence of a legible postmark, if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. �1614.604(b). This time limit is subject to waiver,

estoppel, and equitable tolling. 29 C.F.R. �1614.604(c). An agency shall

dismiss a complaint which is not filed within the fifteen day time period.

See 29 C.F.R. �1614.107(a)(2).

Here, it is undisputed that complainant received the Notice on April

24, 2000. The Notice informed complainant of her right to file a

complaint within fifteen calendar days after receipt of the Notice.

Complainant, however, did not file the complaint until June 9, 2000,

well beyond the time limitation. A review of the record also reveals

that complainant designated a representative prior to the filing of

the complaint. However, complainant's representative is an �Employee

Advocate� and, as noted in his organizational stationary, he is not

an attorney. In cases where �complainant designates an attorney as

representative, service of all official correspondence shall be made

on the attorney and the complainant, but time frames for receipt

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

attorney.� 29 C.F.R. �1614.605(d) (emphasis added). There is no

attorney as representative in the present case. Further, at all time,

complainant is responsible for proceeding the complaint whether or not

a representative has been designated. See 29 C.F.R. �1614.605(e).

Therefore, we find that agency properly based the fifteen-day time

limitation upon receipt by complainant.

Accordingly, the agency's decision dismissing the complaint was proper

and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 8, 2000

__________________

Date

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.