Robert J. Boutte, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 22, 2000
01980435 (E.E.O.C. Mar. 22, 2000)

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.