Michael W. Clark, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01995766 (E.E.O.C. Jul. 17, 2000)

01995766

07-17-2000

Michael W. Clark, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Michael W. Clark v. United States Postal Service

01995766

July 17, 2000

Michael W. Clark, )

Complainant, )

)

v. ) Appeal No. 01995766

) Agency No. 4D270006098

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

____________________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from the agency's

final decision dated September 9, 1998, dismissing his complaint of

unlawful employment discrimination in violation of Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37, 644,

37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

claim for failure to timely file a formal complaint.

BACKGROUND

Complainant filed a formal complaint on July 27, 1998, alleging

disciplinary action in violation of Title VII. In his complaint,

complainant alleged that he was subjected to discrimination on the basis

of reprisal (prior EEO activity) when: on January 30, 1998, he received

a Letter of Warning in lieu of Time-Off Suspension. In the agency's

final decision, the agency dismissed complainant's claim pursuant to

EEOC Regulation 29 C.F.R. � 1614.106(b) for failing to file a formal

complaint within fifteen (15) days of the date of receipt of the notice

of right to file a discriminatory complaint issued by the EEO Counselor.

ANALYSIS AND FINDINGS

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

written complaint with an appropriate agency official within fifteen

(15) calendar days after the date of receipt of the notice of the right

to file a formal complaint.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(2)) provides that the agency shall

dismiss a complaint that fails to comply with the applicable time limits

contained in �� 1614.105, 1614.106, and 1614.204(c), unless the agency

extends the time limits in accordance with � 1614.604(c).

The record in this case indicates that complainant received a notice of

the right to file a formal discrimination complaint on March 18, 1998.

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 a formal

complaint within fifteen days of his receipt of this notice but, instead

filed the formal complaint over four months later on July 27, 1998.

Moreover, complainant has failed to present adequate justification,

pursuant to 29 C.F.R. � 1614.604(c) for extending the filing period.

Thus, we find that the agency properly dismissed complainant's claim

for failure to timely file a formal complaint.

CONCLUSION

On appeal, no persuasive arguments or evidence have been presented

to warrant an extension of the time limit for filing the complaint.

Accordingly, the agency's final decision dismissing appellant's complaint

is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-17-00 ________________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.