Dione M. Thomas, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 14, 1999
05990488 (E.E.O.C. Oct. 14, 1999)

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