Mirna B. Arias, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 19, 2000
05990624 (E.E.O.C. May. 19, 2000)

05990624

05-19-2000

Mirna B. Arias, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mirna B. Arias v. United States Postal Service

05990624

May 19, 2000

Mirna B. Arias, )

Complainant, ) Request No. 05990624

) Appeal No. 01983015

v. )

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Mirna B. Arias (hereinafter referred to as complainant) timely initiated

a request to the Equal Employment Opportunity Commission (Commission)

to reconsider the decision in Mirna Arias v. William J. Henderson,

Postmaster General, United States Postal Service, EEOC Appeal No. 01983015

(March 16, 1999).<1> EEOC Regulations provide that the Commission

may, in its discretion, reconsider any previous decision where the

party demonstrates that: (1). the previous decision involved a clearly

erroneous interpretation of material fact or law; or (2). the decision

will have a substantial impact on the policies, practices, or operation

of the agency. 64 Fed.Reg. 37,644, 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. �1614.405(b)). For the reasons set

forth herein, complainant's request is denied.

ISSUE PRESENTED

The issue herein is whether the previous decision properly affirmed the

agency's dismissal of complainant's complaint as being untimely filed.

BACKGROUND

A review of the record reveals that complainant contacted an EEO Counselor

in October 1996, alleging that she was discriminated against when

the agency repeatedly denied her request to become a 204-B Supervisor.

Informal efforts to resolve the matter were unsuccessful, and complainant

was issued a Notice of Final Interview (Notice) on September 29, 1997.

The record includes a copy of a postal return receipt card which is

signed by complainant, showing that she received the document on October

3, 1997. The Notice specifically provided that complainant had the right

to file a formal complaint within 15 calendar days of her receipt thereof.

Complainant subsequently filed a formal complaint in the matter dated

October 24, 1997.

In its final decision dated February 11, 1998, the agency dismissed

complainant's complaint as untimely. The agency stated that since

complainant received the Notice on October 3, 1997, her formal

complaint was filed beyond the 15-day limitation period set forth in

the regulations. The previous decision affirmed the dismissal, finding

no evidence on appeal which warranted an extension of the applicable

limitation period.

ANALYSIS AND FINDINGS

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

referred to as 29 C.F.R. �1614.106(b)) requires the filing of a written

complaint with an appropriate agency official within 15 calendar days

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

In addition, documents are deemed timely filed if they are received or

postmarked before the expiration of the applicable limitation period.

EEOC Regulation 29 C.F.R. �1614.604(b). As stated, the record

reveals that complainant received the Notice on October 3, 1997;

however, complainant did not file her complaint until October 24, 1997.

The Notice specified that a formal complaint must be filed within 15 days

of the receipt thereof, and included the proper procedures for filing

a complaint. Complainant failed to present any evidence or arguments

with her request for reconsideration. Therefore, based upon a review

of the record, we find that complainant has failed to submit adequate

justification, pursuant to 29 C.F.R. �1614.604(c), for extending

the 15-day limitation period. Accordingly, the Commission denies

complainant's request for reconsideration, and finds that the agency's

decision to dismiss complainant's complaint as untimely was proper.

CONCLUSION

After a review of complainant's request for reconsideration, the previous

decision, and the entire record, the Commission finds that complainant's

request fails to meet the criteria of 29 C.F.R. �1614.405(b), and

it is therefore the decision of the Commission to DENY complainant's

request. The decision in EEOC Appeal No. 01983015 (March 16, 1999)

remains the Commission's final decision. There is no further right of

administrative appeal on a decision of the Commission on this request

for reconsideration.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)

This decision of the Commission is final, and there is no further right

of administrative appeal from the Commission's decision. 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.

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:

_05-19-00_______ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify

that the decision was mailed to claimant, claimant'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.