01982255
11-13-1998
Paul Juarez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paul Juarez v. United States Postal Service
01982255
November 13, 1998
Paul Juarez, )
Appellant, )
)
v. ) Appeal No. 01982255
) Agency No. 1F-937-0028-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant's January 29, 1998 appeal of the agency's January 22, 1998 final
decision (FAD) is accepted pursuant to EEOC Order No. 960, as amended.
For the reasons set forth below, the Commission finds the agency committed
no reversible legal error in its January 22, 1998 FAD administratively
closing appellant's case. We find no arguments by appellant on appeal
to persuade us to the contrary.
Because of the nature of this case, we note the following salient
facts: appellant, a Flexible Mailhandler, initiated EEO counseling
on June 3, 1997, and designated a union shop steward ("UR") as his
representative. Appellant alleged that, for prohibited reasons, the
agency would not promote him to a full-time regular position dating back
to May 27, 1995. In her report, the EEO Counselor ("EEC") declared,
in relevant part: "See attached letter. Complainant agreed to withdraw
complaint, stating that the only reason he filed was because co-workers
told him to."
By memorandum dated July 8, 1997, the subject of which was
"Withdrawal/Final Interview," EEC provided appellant with several agency
forms.<1> The forms included the notice of appellant's right to file
a complaint, and the complaint itself. We find the agency, in its
correspondence, issued to appellant the appropriate notice that he had
15 days from his receipt of the correspondence to file his complaint at
a specified address. See 29 C.F.R. �1614.106(b). However, we also find
that, in pertinent part, EEC's memorandum advised appellant as follows:
"because you have stated that you want to withdraw this case, you need not
return [the notice of the right to file and the complaint itself].<2> EEC
requested appellant sign and date a withdrawal of informal EEO complaint
form (PS Form 2564-C). EEC's correspondence was sent by certified mail
to appellant, and the return receipt reveals that appellant acknowledged
receiving the materials on July 10, 1997.
In a November 21, 1997 letter to a Senior EEO Complaints Processing
Specialist ("SC"), UR referred, inter alia, to "the long delay" in the
processing of this matter. In his December 11, 1997 response, SC noted,
in pertinent part, that "[a] formal complaint was not received by this
office within the prescribed time frame and no further action has been
taken regarding this matter."
In his December 23, 1997 reply to SC, UR does not state that he
or appellant filed a formal EEO complaint in this matter. He avers,
however, inter alia, that he (UR) never received a notice of the right
to file a complaint.
Finally, by letter dated January 22, 1998, in what is essentially the
FAD, containing as it does appeal rights to the Commission, SC informed
UR, in relevant part, that appellant had been properly served with the
appropriate notice for complaint filing and was responsible for going
forward with the complaint, irrespective of whether or not he (appellant)
had a representative.<3> Finally, SC noted that more than four months
had elapsed from the time of service on appellant before either appellant
or UR inquired about this case. Therefore, SC concluded, "[appellant's]
complaint will remain closed."
For the purpose of this decision, we accept UR's November 21, 1997 letter
as appellant's formal EEO complaint and, having done so, find appellant's
complaint untimely. The FAD is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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:
November 13, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1The memorandum indicated a copy of the correspondence, without
enclosures, was sent to UR.
2We note, for the record, that the agency forms EEC advised appellant he
need not return were 2579-A (the notice of the right to file a complaint)
and 2565 (the complaint itself).
3See 29 C.F.R. �1614.605(e).