Manuel T. Burciaga, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2001
01a03502 (E.E.O.C. Mar. 29, 2001)

01a03502

03-29-2001

Manuel T. Burciaga, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Manuel T. Burciaga v. United States Postal Service

01A03502

03-29-01

.

Manuel T. Burciaga,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03502

Agency No. 4E870004600

DECISION

INTRODUCTION

On April 7, 2000, Manuel T. Burciaga (complainant) initiated an appeal to

the Equal Employment Opportunity Commission (EEOC or Commission) from the

final decision of the United States Postal Service (agency), concerning

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, and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that

complainant's complaint was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(2), due to the untimely filing of his formal complaint.

ISSUE PRESENTED

The issue presented herein is whether the agency properly dismissed

complainant's formal complaint for failure to file his complaint within

fifteen (15) days of receiving the notice of right to file.

BACKGROUND

Complainant filed a formal complaint on February 3, 2000 in which

he alleged discrimination on the bases of race (Hispanic) and age

(D.O.B. 4/2/47) when he was issued a Notice of Removal for alleged

safety violations while other employees committing safety violations

were treated differently. In its final decision, the agency dismissed

the complaint, concluding that complainant failed to file his complaint

within 15 days of receiving the notice of right to file. The record

indicates that complainant received the notice of right to file a formal

complaint on January 18, 2000. The notice stated that complainant had to

file a formal complaint within 15 calendar days of its receipt, however,

the complainant did not file his formal complaint until February 3, 2000,

which is beyond the limitation period.<1> It is from that decision that

complainant appeals.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint

with an appropriate agency official within 15 calendar days after the

date of receipt of the notice of the right to file a formal complaint.

An agency shall dismiss a complaint or a portion of a complaint that

fails to comply with the 15-day time limit contained in 29 C.F.R. �

1614.107(a)(2), unless the agency extends the time limits in accordance

with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time

limit is subject to waiver, estoppel, and equitable tolling.

Complainant received the notice of right to file a formal complaint on

January 18, 2000, and filed his complaint on February 3, 2000, which

is beyond the limitations period. A review of the record reveals that

complainant designated a representative prior to filing his complaint.

Complainant's representative is the President of the National Association

of Letter Carriers, Branch 2905, and is not an attorney. On appeal,

complainant's representative explains that a misunderstanding existed

between himself and complainant when the notice of right to file was

received by complainant, resulting in complainant not filing his complaint

within the 15-day time period.<2> EEOC Regulation 29 C.F.R. �1614.605(e),

however, provides that complainant is responsible at all times for

proceeding with the complaint whether or not a representative has

been designated. The record reveals that complainant signed a return

receipt card for the right to file letter on January 18, 2000; therefore,

complainant was aware of his rights and responsible for proceeding

with his complaint. For the foregoing reasons, we find that agency

properly dismissed complainant's complaint for untimely filing of his

formal complaint.

CONCLUSION

Accordingly, the agency's decision dismissing the complaint as untimely

was proper and is hereby AFFIRMED.

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

___03-29-01_______________

Date

1The final agency decision cited January 26, 2000 as the filing date,

however, the record reveals that the appeal was filed on February 3,

2000.

2Complainant's representative does not state the exact nature of the

mis-communication, but rather explains that he discovered on January

20, 2000 that a relative was given a short period of time to live and

a death occurred in his family on January 28, 2000.