01983344
06-02-1999
John P. Rowland, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John P. Rowland v. United States Postal Service
01983344
June 2, 1999
John P. Rowland, )
Appellant, )
)
)
v. ) Appeal No. 01983344
) Agency No. 4H-335-0025-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed appellant's complaint, pursuant to EEOC Regulation 29
U.S.C. �1614.107(b), for failure to file a formal complaint in a timely
manner. Appellant alleged that he was subjected to discrimination on
the bases of race (White), sex (male), and physical disability (plantar
fasciitis, cacaneal fasciitis) when on September 8, 1997, he was sent
to work at another work location and forced to work outside the work
facility.
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.106, which, in turn,
requires the filing of a written complaint with an appropriate agency
official within fifteen (15) calendar days after the date of receipt of
the notice of the right to file a complaint.
The record in this case indicates that appellant received a notice of
the right to file a formal discrimination complaint on November 7, 1997.
The notice informed appellant that he had fifteen days from the date of
receipt of the notice in which to file a formal complaint. The record
further reflects that appellant did not file a formal complaint within
fifteen days of his receipt of this notice but, instead filed the formal
complaint on December 2, 1997. On appeal, appellant asserts that his
representative told him that he had made arrangements for an extension
of the limitation period. However, a complainant is responsible
for proceeding with the complaint at all times, whether or not the
complainant has designated a representative. 29 C.F.R. �1614.605(e). If a
complainant or the complainant's representative does not file an appeal
within the designated time limit, the appeal is untimely and will be
dismissed by the Commission unless the principles of waiver, estoppel
or equitable tolling apply. 29 C.F.R. ��1614.403(c), 1614.604(c); see
also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990);
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). In the
instant case, we find appellant's justification for his untimeliness
insufficient to extend the applicable time limit. Accordingly, we
find that the agency's final decision dismissing appellant's complaint
pursuant to 29 C.F.R. �1614.107(b) was proper, and it is AFFIRMED for
the reasons set forth herein.
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:
June 2, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations