01986678
10-05-1999
Josephine Derby, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Josephine Derby v. United States Postal Service
01986678
October 5, 1999
Josephine Derby, )
Appellant, )
)
v. ) Appeal No. 01986678
) Agency No. 1F-953-0026-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 11, 1998, appellant, through her attorney, filed a timely
appeal of an August 13, 1998 final agency decision, which was received
by the attorney on August 17, 1998, dismissing her complaint, pursuant
to 29 C.F.R. �1614.107(b), due to untimely filing of a formal complaint.
The record indicates that on November 18, 1997, appellant's attorney
informed two agency managerial officials about his representation of
appellant for her injuries sustained due to sexual harassment from her
supervisor, and requested appellant's entire personnel files and records.
The record also indicates that on February 22, 1998, the attorney sent a
letter to the EEOC Field Office in Oakland, California. In that letter,
the attorney informed the Commission that he was representing appellant
and the letter was a complaint against the agency concerning appellant's
sexual harassment allegation. Thereafter, on March 11, 1998, appellant
contacted an EEO Counselor with regard to her complaint. Unable to
resolve the matter informally, the attorney received a notice of final
interview on May 21, 1998. Therein, the attorney was clearly informed
that appellant must file a formal complaint within 15 days upon receipt
of the letter. The record indicates that appellant's formal complaint was
postmarked June 22, 1998, and received by the agency on June 25, 1998.
In its final decision, the agency stated that appellant's attorney
received a notice of final interview, including the 15-day time limit,
on May 21, 1998, but appellant's formal complaint was not filed until
June 22, 1998.
EEOC Regulation 29 C.F.R. �1614.106 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.
The record indicates that appellant's attorney received a notice of
final interview, including the 15-day time limit, on May 21, 1998.
The record indicates that appellant's formal complaint was filed by the
attorney postmarked June 22, 1998, which was beyond the 15-day time limit.
On appeal, the attorney contends that he filed appellant's complaint on
February 22, 1998, to the Commission "in order to protect any and all
State and Federal rights and causes of action." The attorney further
contends that after the receipt of the notice of final interview
at issue, he timely sent appellant's complaint (PS Form 2565) to the
agency, via regular mail, on June 3, 1998. The attorney indicates that
he later learned that his secretary made a clerical error misspelling
the addressee's street name, i.e., by writing "Ryder" Road, instead of
"Rydin" Road, but the June 3, 1998 mail, nevertheless, was never returned
undelivered.
Upon review, we find that the February 22, 1998 letter cannot be
considered as a formal complaint under the regulations since it was not
filed after the completion of EEO counseling nor was it filed after the
receipt of a notice of final interview. See 29 C.F.R. ��1614.105 and 106.
We note that subject letter was not filed with the proper office or
within the appropriate time period in the EEO process.
On appeal, appellant submits a signed declaration dated October 5, 1998,
from her attorney's secretary stating that she mailed appellant's formal
complaint on June 3, 1998. We note that a complaint is deemed timely
if it is delivered in person 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 (5) days of the expiration of the
applicable filing period. 29 C.F.R. �1614.604(b). Accepting that the
complaint was mailed on June 3, 1998, it was not received by the agency
until June 25, 1998, beyond the applicable time limit. Based on the
foregoing, we find that appellant presented no persuasive arguments
or evidence to warrant an extension of the applicable time limit.
Accordingly, the agency's final decision is hereby AFFIRMED.
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. 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:
October 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations