Mattie A. Lowe, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.

Equal Employment Opportunity CommissionJan 27, 2000
01986156 (E.E.O.C. Jan. 27, 2000)

01986156

01-27-2000

Mattie A. Lowe, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Areas), Agency.


Mattie A. Lowe v. United States Postal Service

01986156

January 27, 2000

.

Mattie A. Lowe,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

(S.E./S.W. Areas),

Agency.

Appeal No. 01986156

Agency No. 4-G-730-1191-95

Hearing No. 310-97-5383X

DISMISSAL OF APPEAL

By Notice of Appeal postmarked August 10, 1998, complainant filed

an appeal with this Commission from the April 14, 1998 final agency

decision (FAD) dismissing her EEO complaint of unlawful employment

discrimination. <1>

A copy of the certified mail return receipt card reveals that the FAD

was received at complainant's address of record on April 24, 1998. A

review of the FAD reveals that the agency properly advised complainant

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

decision to file appeal with the Commission. Inasmuch as the thirtieth

day following complainant's receipt of the FAD (May 24, 1998) fell on

a Sunday, and the following day (May 25, 1998) was a federal holiday,

complainant's notice of appeal had to be filed no later than May 26,

1998, in order to be considered timely.

On appeal, complainant requests that the thirty-day time limit be waived

because her brother died one month before her receipt of the FAD, she

had family obligations arising from his death, and further because her

attorney did not return her files to her until July 28, 1998. Although

complainant contends that she did not become aware of the time limit

for filing a notice of appeal until she received her files from her

attorney in July, 1998, we note that the FAD, which was mailed directly to

complainant, expressly addressed the thirty-day time limit for filing an

appeal. Accordingly, complainant has not offered adequate justification

for an extension of the applicable time limit for filing an appeal. The

Commission cannot address any differences between complainant and her

counsel regarding this matter. Accordingly, complainant's August 10,

1998 appeal is hereby DISMISSED. See 64 Fed. Reg. 37,644, 37,659, 37,

661 (1999)(to be codified and hereinafter referred to as 29 C.F.R. ��

1614.402 and 1614.604).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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 27, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

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 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.