01a40836
08-05-2005
Michael Elder, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Elder v. United States Postal Service
01A40836
August 5, 2005
.
Michael Elder,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40836
Agency No. 1H-301-0035-03
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. Complainant claimed that he
was discriminated against on the bases of race, color, sex, age, and
in reprisal for prior EEO activity when he was subjected to ongoing
harassment and a hostile work environment.
In its October 15, 2003 final decision, the agency dismissed the
complaint as being untimely filed. The agency determined that
complainant received the notice of right to file a formal complaint
on June 19, 2003, but that his formal complaint was not received until
July 10, 2003, bearing no postmark, which was not within the applicable
time limitation. Citing 29 C.F.R. � 1614.604(b) of the Commission's
regulations, the agency determined that, as the fifteen-day time limit
for the filing of a formal complaint ended on July 4, 2003, the July 10,
2003 receipt of complainant's un-postmarked complaint was not within five
days of the expiration of the filing period, and was therefore untimely.
On appeal complainant asserts that as Friday, July 4, 2003, was a
Federal Holiday, the fifteen-day expiration period ended on Monday,
July 7, 2003, pursuant to 29 C.F.R. � 1614.604(d), and the fifteen-day
period did not end on July 4, 2003. Complainant therefore argues that
the unpostmarked formal complaint was timely received on July 10, 2003,
as it was within 5 days of the expiration of the filing period.
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 a notice of the right to do so.
EEOC Regulation 29 C.F.R. � 1614.604(b) states that a document shall be
deemed timely if it is received 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 5 days of the expiration of the applicable
filing period. The regulation set forth at 29 C.F.R. � 1614.604(d) in
pertinent part explains, however, that if the last day of the filing
period �falls on a Saturday, Sunday, or Federal holiday,� then �the
period shall be extended to include the next business day.�
The record shows that complainant received the notice of right to file
a formal complaint on June 19, 2003, making the last day of the fifteen
day filing period for the filing of the formal complaint July 4, 2003,
a Federal holiday. Pursuant to 29 C.F.R. � 1614.604(d), the last day
of the filing period was therefore extended to include the next business
day, Monday July 7, 2003, as the date of expiration of the filing period
for the formal complaint. As the agency received the un-postmarked
complaint on July 10, 2003, or, as specified by 29 C.F.R. � 1614.604(b),
within 5 days of the filing expiration date of Monday, July 7, 2003,
complainant's formal complaint was timely filed.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
August 5, 2005
__________________
Date