0120090481
02-26-2009
Helen Whelan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Helen Whelan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090481
Agency No. 4F-956-0080-08
Hearing No. 550-08-00338X
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's
decision, dated September 30, 2008, concerning her complaint of unlawful
employment discrimination. In her complaint, complainant alleged
discrimination based on race (White), sex (female), age (over 40),
disability, and in reprisal for prior EEO activity when she did not
receive and/or was found ineligible to receive a merit pay increase for
her 2007 performance and/or that she was not given the opportunity to
complete her merit service in 2007. 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.
The regulation further provides that a document shall be deemed timely
if it is received or postmarked before the expiration of the applicable
filing period, or, in the absence of a legible postmark, if it is
received by mail within five days of the expiration of the applicable
filing period. 29 C.F.R. � 1614.604(b).
Complainant clearly admits that she received the agency's decision
on October 4, 2008. The appeal was postmarked November 4, 2008 and
received by fax on Monday, November 4, 2008, which was one day beyond the
30-day time limit set by the regulations. The record reveals that the
agency's decision explicitly informed complainant of the time limits on
her right to appeal. On appeal, complainant's non-legal representative
includes Certificate of Service wherein which his assistant certified
that she mailed the appeal via First Class Mail and faxed the same to
the Commission on November 3, 2008. However, the appeal was clearly
postmarked on November 4, 2008, and not November 3, 2008. On appeal,
complainant does not submit any adequate justification to invoke waiver
or equitable tolling for filing the appeal. Accordingly, the appeal is
DISMISSED as untimely pursuant to � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 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 (S0408)
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 (Z1008)
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
2/26/09
__________________
Date
2
0120090481
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013