01976558
01-22-1999
Ralph A. Cox, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ralph A. Cox v. United States Postal Service
01976558
January 22, 1999
Ralph A. Cox, )
Appellant, )
)
v. ) Appeal No. 01976558
) Agency No. 4K-210-0049-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds the agency committed no reversible legal error in
its August 4, 1997 final decision (FAD) dismissing appellant's formal
EEO complaint for untimely filing, pursuant to 29 C.F.R. �1614.107(b), in
pertinent part. We find appellant has not met his burden of demonstrating
his complaint was timely filed. Horton v. U.S. Postal Service, EEOC
Request No. 05950669 (May 31, 1996). In the present case, we are not
persuaded by appellant's arguments in his September 3, 1997 appeal to
the contrary.
The record shows that, on April 28, 1997, appellant received the
appropriate notice that he had fifteen (15) days, from the date of
his receipt of the notice, to file his complaint, according to the
certified mail, return receipt form (the "green card"). In making this
finding, we recognize certain discrepancies in the record. We find,
for example, the EEO Counselor erred by one digit in identifying the
certified mail number in her correspondence to appellant. However,
we find, in reviewing the record as a whole, this error to be harmless.
We find that the Counselor's April 24, 1997 notice of final interview
referenced, in relevant parts, a settlement offer, as well as the form
for filing a formal complaint in the event appellant rejected the offer.
We find the Receipt for Certified Mail number correctly matches the
number on the number of the article on the green card, and references
"settlement offer."
We further find that, to be timely filed, appellant's complaint had to
be postmarked or hand delivered by May 13, 1997, in accordance with 29
C.F.R. ��1614.106(b), and .604, in relevant parts. The Commission's
regulations also provide that, in the absence of a legible postmark,
a document is timely "if it is received by mail within five days of the
expiration of the applicable filing period." 29 C.F.R. �1614.604(b).
In the present case, we find appellant's complaint envelope contained
no discernible postmark. In addition, we find the agency received the
complaint, according to the date stamped on that pleading, on May 27,
1997, which is well beyond the applicable time limitation. Accordingly,
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. �l6l4.604(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:
January 22, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations