0120090073
07-21-2011
Donald McCain, III, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Donald McCain, III,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120090073
Hearing No. 471-2007-00107X
Agency No. 4J-481-0081-07
DISMISSAL OF APPEAL
By Notice of Appeal sent by facsimile dated October 6, 2008, Complainant
filed an appeal with this Commission from the May 2, 2008 final order
concerning his EEO complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq. In his complaint, Complainant
alleged that the Agency discriminated against him on the basis of
disability when, on August 31, 2006, he was given a pre-disciplinary
interview and, subsequently, was issued a Notice of Removal dated October
26, 2006 charging him as being Absent Without Official Leave (AWOL).
EEOC Regulation 29 C.F.R. § 1614.402 provides that appeals to the
Commission must be filed within 30 calendar days after a complainant
receives notice of the Agency’s decision. According to the U.S. Postal
Service Track and Confirm contained in the record, the Agency's final
order was delivered to Complainant’s address of record and also his
then non-legal representative on May 7, 2008. Complainant however
did not file the appeal until October 6, 2008, which was well beyond
the 30-day time limit set by the regulations. A review of the record
reveals that the Agency properly advised Complainant that he had thirty
(30) calendar days after receipt of its final order to file his appeal
with the Commission. Therefore, in order to be considered timely,
Complainant had to file his appeal no later than June 6, 2008.
On appeal, Complainant does not submit any adequate justification to
invoke waiver or equitable tolling for filing the appeal. The fact
that Complainant was waiting for the results of a medical disability
claim, before deciding whether to pursue this appeal, is insufficient.
Accordingly, Complainant's October 6, 2008 appeal is hereby DISMISSED
as untimely pursuant to 29 C.F.R. § 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
July 21, 2011
Date
2
0120090073
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120090073