01994606
09-13-1999
James R. Hollinger, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James R. Hollinger v. United States Postal Service
01994606
September 13, 1999
James R. Hollinger, )
Appellant, )
)
v. ) Appeal No. 01994606
) Agency No. 1-H-341-0012-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DISMISSAL OF APPEAL
By Notice of Appeal received on May 19, 1999, appellant filed an
appeal with this Commission from an April 6, 1999 agency decision (FAD)
dismissing appellant's complaint of unlawful employment discrimination.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after an appellant receives notice of the FAD.
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 indicates that the FAD was mailed via certified
mail to appellant's address of record on April 6, 1999. The certified
mail return receipt was signed on April 8, 1999. A review of the FAD
reveals that the agency properly enclosed with its decision, appeal
rights to the Commission advising appellant that he had thirty (30)
calendar days after receipt of its final decision to file his appeal.
Therefore, in order to be considered timely, appellant had to file his
appeal no later than May 8, 1999. Appellant's appeal was filed on May 19,
1999. The Commission has previously held that receipt of a document at a
complainant's correct address by a member of the complainant's household
or family of suitable age and discretion constitutes constructive
receipt by complainant. See, e.g., Baunchand v. United States Postal
Service, EEOC Request No. 05920389 (May 29, 1992). When as is the case
in the instant matter, a certified U.S. Postal return receipt has been
signed by an unidentified individual at the complainant's address
on a date certain to indicate delivery of an important document, the
Commission has effectively relied on the certified receipt to establish
a presumption of constructive receipt of the document by the complainant
on that date. See, e.g., Pazinick v. United States Postal Service,
EEOC Request No. 05930337 (September 10, 1993). The presumption,
however, is rebuttable. Appellant has offered no explanation for his
untimely appeal. Accordingly, appellant's appeal is hereby DISMISSED.
See 29 C.F.R. �1614.402 and 1614.604.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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. 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:
September 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations