Mark A. Bate, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.

Equal Employment Opportunity CommissionSep 20, 1999
01975896 (E.E.O.C. Sep. 20, 1999)

01975896

09-20-1999

Mark A. Bate, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.


Mark A. Bate, )

Appellant, )

) Appeal No. 01975896

v. ) Agency No. 4J480100794

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Great Lakes/Midwest Region), )

Agency. )

)

DECISION

By letter and EEOC Form 573 dated July 24, 1997, appellant filed an appeal

with this Commission from a final decision of the agency. The appeal

contained no postmark, but was received by the Commission on August

1, 1997. In the final decision, dated February 12, 1997. the agency

made a finding of no discrimination on the bases of mental disability

(emotionally unstable) or reprisal (prior EEO activity) when appellant

was removed from his position as the Farmington, Michigan Postmaster on

August 26, 1994, and when appellant received a notice that he was being

held responsible for a shortage in the office on September 26, 1994.

A copy of the certified mail return receipt card supplied by the agency

reveals that someone at appellant's address who shares appellant's last

name, specifically, Shelia Bate, signed for the agency's final decision

on February 18, 1997. Appellant's EEOC Form 573 also indicates that

the final decision was received by appellant on this date. A review of

the agency's final decision illustrates that the agency properly advised

appellant that he had thirty (30) calendar days after receipt of its final

decision to file a notice of appeal with this Commission. Therefore,

in order to be considered timely, appellant had to file his appeal no

later than March 20, 1997. See 29 C.F.R. �� 1614.402 and 1614.604.

Appellant's appeal was received on August 1, 1997, and dated July

24, 1997. Under 29 C.F.R. � 1614.604(b), a document is deemed timely

if it delivered in person or postmarked before the expiration of the

applicable filing period, or, in the absence of a legible postmark,

it if is received by mail within five days of the expiration of the

applicable filing period. Even allowing for the possibility that the

appeal was delivered in person on July 24, 1997, or granting appellant

five days from the expiration of the applicable filing period, the appeal

was not filed until more than 4 months after the March 20, 1997 deadline.

On appeal, it appears as if appellant is attempting to justify his

untimeliness by noting that new evidence has been obtained and that

the case should therefore be re-opened. Appellant refers to evidence

and testimony which allegedly demonstrate that his superior's proffered

reasons for their actions are not worthy of belief. However, this does

not in any way explain or justify appellant's failure to comply with

the applicable time requirements. Therefore, appellant's appeal is

hereby DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

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 the

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 the 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 the 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 the 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:

Sept. 20, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations