01972315
09-02-1999
Diane M. Williams, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.
Diane M. Williams, )
Appellant, )
) Appeal No. 01972315
v. ) Agency No. 4-H-320-1304-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Region), )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination.
The appeal was postmarked January 20, 1997. By regulation, appeals to
the Commission must be filed within thirty (30) calendar days after a
complainant (or complainant's attorney) receives notice of the final
agency decision. 29 C.F.R. � 1614.402(a),(b). Appeals are deemed filed
on the date received by the Commission, unless postmarked earlier. 29
C.F.R. � 1614.604(b).
In this case, the record shows that appellant's attorney received
the final agency decision on October 7, 1996. Appellant's appeal on
January 20, 1997, was, therefore, filed beyond the 30-day time limit.
The record reveals that the final agency decision explicitly informed
appellant of the time limits on her right to appeal. The Commission's
regulations governing the computation of time limits allow for waiver
and/or equitable tolling, 29 C.F.R. � 1614.604(c), however, appellant
has failed to submit sufficient evidence to justify the invocation of
waiver or equitable tolling. Accordingly, the appeal is untimely and
is DISMISSED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 (3O) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (2O) 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 (2O) 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 the 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 the 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 the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (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:
9/02/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1 There is fragmentary
evidence in the record that appellant's attorney
attempted to file an appeal in October, 1996.
There is no indication where the notice of
appeal was filed. The record reflects, however,
that the notice was not timely transmitted to
the Commission. This evidence of appellant's
attempt to perfect an appeal is insufficient to
avoid dismissal. The Commission has consistently
held that an appellant's manifestation of an
intent to file an appeal, without more, will not
toll the time for filing an appeal See, e.g.,
Wiley v. United States Postal Service, EEOC Request
No. 05980828 (September 24, 1998)(appeal untimely
where notice of appeal was mailed, within 30-day
period, to agency rather than EEOC.)