01a10219
11-30-2000
Robert D. Mollenauer, Jr., Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Robert D. Mollenauer, Jr. v. Department of Commerce
01A10219
November 30, 2000
.
Robert D. Mollenauer, Jr.,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A10219
Agency No. 00-63-01064D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission. The MOU
was entered into in order to process complaints arising from the 2000
Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
The Commission's Washington, D.C. Field Office dismissed the instant
complaint for failure to file a timely formal complaint. In its September
14, 2000 dismissal, the Field Office found that complainant received a
Notice of Right to File a Formal Complaint (�Notice�) on April 14, 2000,
but failed to file his formal complaint until May 9, 2000.
The record includes the certified receipt card indicating that complainant
received the Notice April 14, 2000. The record also contains a copy
of complainant's formal complaint, dated April 14, 2000, but marked as
received by the agency on May 9, 2000. The envelope does not clarify
when complainant sent the complaint form to the agency.<1>
Complainant contends that he timely sent all documents to the agency.
Complainant did not present any evidence of the date he filed his formal
complaint, or mention the method he delivered the complaint to the agency
(by hand, fax, mail, courier, etc.). Further, he gave no reason to
excuse the alleged delay.
Complainant must file his formal complaint within fifteen (15) days
of receiving notice of the right to do so. See 29 C.F.R. � 1614.106.
Generally, complaints that fail to comply with this time limit must be
dismissed. See 29 C.F.R. � 1614.107(a)(2). Complaints are considered
filed on the date of their postmark. See 29 C.F.R. � 1614.604(b). In the
absence of a legible postmark, complaints are deemed timely if received
within five days of the expiration of the applicable filing period. Id.
If the last day of the filing period falls on a Saturday, Sunday, or
Holiday, the filing period is extended to include the next business day.
See 29 C.F.R. � 1614.604(d).
Since complainant received the Notice on April 14, 2000, the fifteen-day
limitation period expired Saturday, April 29, 2000. The next business day
was Monday, May 1, 2000. The Commission cannot determine when complainant
postmarked his complaint, but finds that the agency received the complaint
on May 9, 2000. To be considered timely under the regulations, the
agency must have received the complaint by May 8, 2000.<2> Therefore,
the formal complaint was not timely.
CONCLUSION
Accordingly, the Field Office's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 30, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The envelope is an official government envelope, as opposed to an
envelope to which complainant would have access as a private citizen.
It does not include the complete mailing address for the agency;
it lacks city, state, and zip code. Although the envelope contains
a franking machine date of May 9, 2000, this mark is not in the upper
right-hand corner of the document as required for mailing, and does not
include any amount of postage (the postmark indicates that �$ 00.00"
was spent on postage). Further, the postage has not been canceled.
The envelope also is date-stamped as received May 10, 2000.
2Five days from the expiration of the applicable filing period falls
on Saturday, May 6, 2000, again requiring the extension of the filing
period to the next business day, or Monday, May 8, 2000.