01980430
10-21-1998
Donna P. Johnson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Donna P. Johnson, )
Appellant, )
)
v. ) Appeal No. 01980430
) Agency No. 1A-126-0060-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 14, 1997, appellant filed a timely appeal with this Commission
from a final agency decision ("FAD") received by her on September 24,
1997, pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In her complaint, appellant alleged
that she was subjected to discrimination on the bases of race (Black)
and disability (perceived) when on March 10, 1997, she was informed that
she was being removed for alleged unsafe work habits.
The agency dismissed appellant's complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for failure to file a formal complaint in a timely
manner. Specifically, the agency determined that appellant received
notice of her right to file a formal complaint on May 6, 1997, but did
not file a formal complaint until August 19, 1997, beyond the fifteen
(15) day limitations period.
In her correspondence with the agency, appellant asserted that her
formal complaint was mailed on May 20, 1997, in the same envelope with
a complaint filed by her representative. In support of her assertion,
appellant provided a certified mail return receipt showing that the
agency's EEO Complaint Processing unit received a certified letter on
May 21, 1997, which, appellant contends, contained both complaints.
It was only when appellant's representative received no acknowledgment
that the agency received appellant's complaint that she contacted
the agency and learned that it had no record of receipt. At that time
appellant sent the formal complaint with a letter dated August 19, 1997,
which was received by the agency on August 25, 1997.
In its brief in opposition to appellant's appeal, the agency contends
that only appellant's representative's formal complaint was present in
the envelope it received on May 21, 1997. In support of its contention,
the agency notes that the return receipt bears a notation written by an
EEO Counselor indicating receipt only of appellant's representative's
formal complaint. Additionally, the agency provided an affidavit from
the EEO Counselor stating that only appellant's representative's complaint
was present in the certified letter for which she signed on May 21, 1997.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that an agency shall
dismiss a complaint, or portion thereof, that fails to comply with the
applicable time limits contained in ��1614.105, 1614.106 and 1614.204(c).
In the instant case, the record reveals that the agency sent appellant
notice of her right to file a formal complaint on May 6, 1997, and
that the notice correctly informed appellant that she had to file a
formal complaint within fifteen (15) days of its receipt. Appellant
provided insufficient evidence to rebut the agency's assertion that the
certified letter it received on May 21, 1997, contained only appellant's
representative's formal complaint. We find, therefore, that August 19,
1997, was the proper date of appellant's formal complaint. As that date
is more than fifteen (15) days from the date appellant received notice of
her right to file a formal complaint, we find that the agency correctly
dismissed appellant's complaint pursuant to 29 C.F.R. �1614.107(b).
STATEMENT OF RIGHTS - ON APPEAL
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. �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 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. 21, 1998
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations