01a02686
07-21-2000
Joseph K. Simmons, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W.) Agency.
Joseph K. Simmons v. United States Postal Service
01A02686
July 21, 2000
Joseph K. Simmons, )
Complainant, )
)
v. ) Appeal No. 01A02686
) Agency No. 1H301007299
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(S.E./S.W.) )
Agency. )
)
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dated January 25, 2000, dismissing his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq.<1> In his complaint, complainant alleged that he was subjected
to discrimination on the basis of race (Black) and reprisal (prior EEO
activity) when on July 9, 1999, he was given instructions to operate a
faulty vehicle, resulting in a work related injury.
By FAD dated January, 2000, the agency dismissed claim (1) for untimely
filing of the formal complaint. EEOC Regulation 29 C.F.R. � 1614.106(b)
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 formal complaint.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall
dismiss a complaint that fails to comply with the applicable time limits
contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency
extends the time limits in accordance with � 1614.604(c).
The record in this case indicates that complainant received his final
interview on November 18, 1999. The record further reflects that
complainant did not file a formal complaint within fifteen(15) days of
the final interview but, instead filed the formal complaint on December
6, 1999. Complainant on appeal does not dispute the date of his final
interview. Complainant has failed to present adequate justification,
pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.
Therefore, the Commission finds that the agency properly dismissed claim
(1).
Accordingly, the agency's dismissal of the complaint for untimely filing
of the formal complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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 (Z1199)
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:
July 21, 2000 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.