01980435
03-22-2000
Robert J. Boutte, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert J. Boutte v. United States Postal Service
01980435
March 22, 2000
Robert J. Boutte, )
Complainant, )
)
v. ) Appeal No. 01980435
) Agency No. 1K-223-0002-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 17, 1997, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
September 19, 1997, pertaining to his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1>
The agency dismissed complainant's complaint for failure to timely file
a formal complaint after having received notice of his right to do so,
pursuant to Volume 64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified
and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)). EEOC Regulation 29
C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss an entire
complaint that fails to comply with the applicable time limits contained
in �� 1614.105, 1614.106 and 1614.204(c), unless the agency extends that
time limits in accordance with � 1614.604(c). The agency determined
that on June 9, 1997 complainant received the agency's Notice of Final
Interview, which notified him that he had 15 days from its receipt in
which to file a formal complaint of employment discrimination. The FAD
indicated that complainant's formal complaint was filed within 15 days
of June 9, 1997 but instead, was not received by the agency until July
8, 1997.
The record contains a copy of complainant's formal complaint dated
June 20, 1997. The copy of the complaint provided to the Commission
also contains a date stamp indicating that the complaint was received
on June 20, 1997. On appeal, complainant argues that this date stamp
indicates that his formal complaint was received by the agency on June
20, 1997. The copy of the complaint provided to the Commission in his
appeal statement contains the initials "L.D." next to the June 20, 1997
date stamp. Complainant asserts on appeal that the initials are those
of the clerk on duty who received his formal complaint on June 20, 1997.
We note, however, that the stamp does not identify any particular agency
office or division having received the complaint on June 20, 1997.
The record also contains a copy of a letter from the agency to complainant
dated November 3, 1998, explaining why complainant's complaint was
dismissed. The letter indicates that complainant's complaint was received
in the agency EEO office in an Inter-Department Delivery envelope on
July 8, 1997. The agency has provided the Commission with a copy of
the envelope which indicates that complainant delivered the complaint
to an agency EEO official in the agency EEO office on July 8, 1997.
We also note here the copy of the complaint provided by the agency on
appeal, contains the June 20, 1997 date stamp, but it does not contain
the handwritten initials, "L.D."
Based on our review of the record and previous Commission's decisions on
this issue, we hold that complainant's formal complaint was untimely filed
on July 8, 1997. The Commission has held that where there is an issue of
timeliness, the agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness.
See Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). We are persuaded the evidence provided by the agency in
this instance. Without more persuasive evidence by complainant, we
must affirm the agency's decision in this matter. Accordingly, under
the circumstances of the instant matter, we find that the agency has met
its burden concerning the issue of untimeliness. The agency's decision
is AFFIRMED for the reasons set forth herein.
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
March 22, 2000
___________________________________
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 complainant, complainant's representative
(if applicable), and the agency on:
_______________ _________________________________
Date Equal Employment Assistant
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.