05970428
01-22-1999
Donald W. Hayes, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donald W. Hayes v. United States Postal Service
05970428
January 22, 1999
Donald W. Hayes, )
Appellant, )
)
v. ) Request No. 05970428
) Appeal No. 01952252
William J. Henderson, ) Agency No. 4F-1891-03
Postmaster General, )
United States Postal Service, )
Agency. )
)
DENIAL OF REQUEST FOR RECONSIDERATION
On January 27, 1997, Donald W. Hayes (appellant) initiated a request
to the Equal Employment Opportunity Commission (EEOC or Commission)
to reconsider the decision in Donald W. Hayes v. United States Postal
Service, EEOC Appeal No. 01952252 (October 18, 1996). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider any
previous Commission decision. 29 C.F.R. �1614.407(a). Requests for
reconsideration must be filed within 30 calendar days after an appellant
receives notice of the appeal decision. 29 C.F.R. �1614.407(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 reflects that appellant received the appeal
decision on October 25, 1996, as evidenced by a certified-mail return
receipt.<1> The thirtieth day after appellant received the appeal
decision was Sunday, November 24, 1996. Pursuant to the Commission's
regulation on computation of time, the filing deadline would have been
extended to the next business day: Monday, November 25, 1996. See 29
C.F.R. �1614.604(d). However, appellant's request for reconsideration
is legibly postmarked January 27, 1997, well beyond the 30-day time
limit set by the Commission's regulations. See 29 C.F.R. �1614.407(b).
Pursuant to 29 C.F.R. �1614.604(c), the aforementioned time-limitation may
be subject to extension through waiver, estoppel, or equitable tolling of
the limitation period. Appellant submitted medical evidence showing that
he has sustained a number of physical injuries over an unspecified period
of time. However, the evidence does not establish, or even suggest, that
appellant was either physically or mentally incapacitated from filing
his request for reconsideration during the regulatory 30-day period.
See Crear v. U.S. Postal Service, EEOC Request No. 05920700 (October
29, 1992). Further, the evidence which appellant states he has "just
received" is irrelevant to the complaint at bar. Appellant implies that
the evidence supports a connection between an investigation conducted by
the Occupational Safety and Health Administration (OSHA) and the adverse
action against him by the agency. Even if true, reprisal for OSHA-related
activity is not a matter within the Commission's jurisdiction; nor may
appellant advance a new theory of discrimination for the first time in
a request for reconsideration. Therefore, the Commission finds no basis
upon which to grant an extension of the time for filing. Accordingly, the
request is untimely and is DENIED. The decision in Appeal No. 01952252
remains the Commission's final decision. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil 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. 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.
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:
JAN 22, 1999
Date Frances M. Hart
Executive Officer
Executive Secretariat
1 Appellant's representative received the appeal decision on November 6,
1996. However, because appellant's representative was not an attorney,
the time to request reconsideration began to run when appellant received
the appeal decision. See 29 C.F.R. �1614.605(d).