01A10687
01-29-2001
Leland E. Jesperson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leland E. Jesperson v. United States Postal Service
01A10687
January 29, 2001
.
Leland E. Jesperson,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10687
Agency No. 4-E-9840-0035-00
DECISION
On October 20, 2000, complainant filed a timely appeal with this
Commission from an agency decision pertaining to 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.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On June 4, 2000, complainant contacted the EEO office regarding claims of
discrimination based on age, disability, and reprisal. Informal efforts
to resolve complainant's concerns were unsuccessful. On August 1, 2000,
complainant filed a formal complaint.
The agency issued a decision dismissing the complaint on the grounds that
it was untimely filed. According to the agency, complainant received his
final interview on July 13, 2000, but did not file the complaint until
nineteen days later. The agency dismissed two claims on the alternative
grounds of untimely EEO Counselor contact.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving notice of the right to do so.
The record contains a copy of a Domestic Return Receipt showing that
complainant received a Notice of Right to File Individual Complaint
(hereinafter �Notice�) on July 13, 2000. The Notice informed complainant
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
complainant did not file the complaint within fifteen days of his receipt
of this notice but, instead filed the complaint in August 2000<2>.
Although complainant refers to mental conditions and neck problems on
appeal, he provides no reason for his untimeliness. Moreover, based on
the evidence in the record, we do not find that complainant's ailments
so incapacitated him that he was unable to timely file his complaint.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual is
so incapacitated by his condition that he is unable to meet the regulatory
time limits. See Davis v. United States Postal Service, EEOC Request
No. 05980475 (August 6, 1998); Crear v. United States Postal Service,
EEOC Request No. 05920700(October 29, 1992). Accordingly, the agency's
decision to dismiss the complaint is AFFIRMED.
Because we affirm the agency's dismissal of the complaint for the reason
stated herein, we find it unnecessary to address the agency's decision
to dismiss some of the claims on alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 29, 2001
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2We note that the copy of the envelope in which the complaint was filed
bears an August 2000 postmark. The Commission notes that while the
exact date of the postmark is illegible, the postmark clearly identifies
�August� as the month of mailing. Assuming, arguendo, that complainant's
complaint was postmarked on the earliest possible August 2000 date,
i.e., August 1, 2000, complainant's complaint would nonetheless be
untimely filed.