01991744
12-01-1999
Francisco Noriega-Quijano, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Francisco Noriega-Quijano v. United States Postal Service
01991744
December 1, 1999
Francisco Noriega-Quijano, )
Complainant, )
)
v. ) Appeal No. 01991744
) Agency No. 1-K-204-0061-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On December 30, 1998, complainant filed a timely appeal of a final agency
decision, which was dated December 8, 1998, dismissing his complaint
due to untimely filing of a formal complaint.<1>
The record indicates that in a letter dated September 10, 1997,
complainant alleged that he was discriminated against when he was
subjected to harassment concerning job assignments and working conditions.
Upon receipt of the letter, the agency initiated pre-complaint processing,
and complainant was provided with EEO counseling with regard to his
complaint. Unable to resolve the matter informally, complainant received
a notice of final interview on May 12, 1998. Therein, complainant was
informed that his formal complaint must be filed within 15 days upon
receipt of the letter.
The record also indicates that by letter dated September 9, 1998,
complainant requested to the Commission's Washington Field Office a
hearing before an EEOC Administrative Judge with regard to his complaint.
In response, the Commission's Washington Field Office informed
complainant that per an agency's EEO Coordinator, his September 10,
1997 correspondence triggered the counseling process, and he did not
yet file a formal complaint. In that letter, complainant was informed
that he must file a formal complaint within the 15-day time limit under
EEOC 29 C.F.R. �1614.106(b). Complainant, subsequently, filed a formal
complaint dated October 5, 1998, to the agency's EEO Coordinator.
On appeal, complainant contends that he timely filed a formal complaint
on September 10, 1997.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a complaint
with the agency that allegedly discriminated against the complainant
within fifteen (15) calendar days after the date of receipt of the notice
of final interview.
Upon review, we find that complainant's September 10, 1997 correspondence
was intended as his request for EEO counseling with regard to his
complaint since he had no prior EEO counseling concerning the matter.
It is noted that under the regulations, aggrieved persons must contact an
EEO Counselor prior to filing a complaint in order to try to informally
resolve the matter. See 29 C.F.R. �1614.105(a). The record indicates
that the agency, thereafter, provided complainant with EEO counseling,
and complainant was, thereafter, issued a notice of final interview,
including the 15-day time limit, on May 12, 1998. Complainant filed
a formal complaint on October 5, 1998, which was beyond the 15-day
time limit. Accordingly, the agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). All requests and arguments must 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
timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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).
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. 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:
December 1, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.