Eddie T. Miller, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01985747 (E.E.O.C. Sep. 22, 1999)

01985747

09-22-1999

Eddie T. Miller, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (N.E./N.Y. Metro Region), Agency.


Eddie T. Miller, )

Appellant, )

) Appeal No. 01985747

v. ) Agency No. 1B-145-1024-95

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(N.E./N.Y. Metro Region), )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination.

The appeal was postmarked July 17, 1998. By regulation, appeals to

the Commission must be filed within thirty (30) calendar days after a

complainant (or complainant's attorney) receives notice of the final

agency decision. 29 C.F.R. � 1614.402(a),(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 shows that appellant's attorney received the

final agency decision on March 23, 1998. Appellant's appeal on July 17,

1998, was, therefore, filed beyond the 30-day time limit. The record

reveals that the final agency decision explicitly informed appellant of

the time limits on her right to appeal. The Commission's regulations

governing the computation of time limits allow for waiver and/or equitable

tolling, 29 C.F.R. � 1614.604(c), however, appellant has failed to submit

sufficient evidence to justify the invocation of waiver or equitable

tolling. Accordingly, the appeal is untimely and is DISMISSED.<1>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 (3O) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (2O) 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 (2O) 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 the 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 the 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 the 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. 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 (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:

9/22/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 In explaining the

lateness of the filing, appellant's attorney

informs us that, as a result of a death in

his immediate family, he was �not in the office

full-time for over a thirty (30) day period.� He

does not relate, however, whether that absence

occurred prior to the expiration of the 30-day

period for filing an appeal. In the absence

of that information, we are unable to conclude

that an extension of the time for filing would

be appropriate.