05990488
10-14-1999
Dione M. Thomas, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dione M. Thomas v. United States Postal Service
05990488
October 14, 1999
Dione M. Thomas, )
Appellant, )
) Request No. 05990488
v. ) Appeal No. 01985524
) Agency No. 4K-200-0181-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
__________________________________)
GRANTING OF REQUEST FOR RECONSIDERATION
On March 10, 1999, Dione M. Thomas (appellant) initiated a request to the
Equal Employment Opportunity Commission (EEOC) to reconsider the decision
in Thomas v. USPS, EEOC Appeal No. 01985524 (February 9, 1999). EEOC
Regulations provide that the Commissioners may, in their discretion,
reconsider any previous decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). Appellant's request is granted.
The record indicates that appellant contacted an EEO counselor complaining
of discrimination when she was not converted to a career employee,
resulting in termination of her employment. The agency sent appellant
a notice of final interview in October 1997, and appellant filed her
formal complaint in January 1998. Thereafter the agency dismissed the
complaint for failure to timely file a formal complaint, and appellant
appealed. The previous decision dismissed appellant's appeal as untimely
filed, finding that appellant received the final agency decision on May
31, 1998, and that she filed her appeal on July 9, 1998.
In her request for reconsideration, appellant explains that she was in
the military service from October 1997 until June 1998, which caused
her to be untimely. The record indicates that the notice of final
interview was mailed to appellant at a military address. In addition, the
record contains an explanation from appellant for her untimely filing -
that a friend signed for the certified letter, but that because of her
constant moves in the military, she did not receive the letter until much
later. Further, in her request for reconsideration, appellant explains
that she was involved in "Operation No Fly" with the military.
Given appellant's active military duty, which the record amply
supports, the Commission finds that the previous decision erred in
finding appellant's appeal was untimely. The Commission has previously
held that the time period during which a complainant was in active duty
status is excluded from the computation of time in determining whether a
complaint was timely filed. See Cross v. USPS, EEOC Request No. 05940901
(May 18, 1995); Myrbeck v. Department of Veterans Affairs, EEOC Request
No. 05970331 (April 10, 1997). Thus, the Commission vacates the previous
decision and addresses the agency's dismissal of the complaint. Likewise,
given appellant's active military service at the time the formal complaint
was due, the Commission finds that good cause is shown for extending
the time limits for filing the formal complaint. The agency's decision
is reversed and the matter is remanded.
After a review of appellant's request for reconsideration, the previous
decision, and the entire record, the Commission finds appellant's
request meets the criteria of 29 C.F.R. �1614.407(a), and it is the
decision of the Commission to grant appellant's request. The decision
in EEOC Appeal No. 01985524 is vacated, the agency's final decision is
reversed and the matter is remanded for further processing. Because this
decision addresses the agency's final agency decision for the first time,
the parties may seek reconsideration of this decision.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to the appellant a copy of the investigative file and also shall notify
the appellant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the appellant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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:
Oct. 14, 1999
____________ ___________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat