01a03625
09-01-2000
Samuel McCauley, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Samuel McCauley v. Department of Transportation
01A03625
September 1, 2000
.
Samuel McCauley,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A03625
Agency No. TD-00-4105
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 16, 2000, dismissing 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>
According to the record, complainant, on December 21, 1999, filed
a formal EEO complaint claiming that he was the victim of unlawful
employment discrimination in reprisal for prior EEO activity when he
was not selected for the position under vacancy announcement AN81890.
The agency on March 16, 2000, issued a final decision dismissing
the present complaint for untimely filing of the formal complaint.
Specifically, the agency found that complainant received the notice of
final interview on December 27, 1999, and he filed his formal complaint
on January 14, 2000, which is in excess of the fifteen day limitation
period.
The notice of final interview was mailed to complainant's place of
employment and the certified return receipt letter was signed for by a
co-worker of complainant. In addition, the agency, prior to dismissing
the complaint, requested an explanation from complainant as to why he
exceeded the fifteen day limitation period in submitting his formal
complaint. In response to the agency's request, complainant provided
three explanations: first, he was on annual leave from December 26, 1999
through January 10, 2000, and therefore out of the office; second, he was
expecting the notice to arrive at his home address; and third, because
the envelope was non-descriptive and bore no return address, he discarded
it and did not open it until he was well off annual leave. Furthermore,
on appeal, complainant, through his attorney, admits that he went into
work on December 29, 1999, and saw the envelope containing his notice of
final interview; however, because it bore no return address and he was
under the impression it would be sent to his home address, complainant
disregarded the letter.
The Commission previously has held that receipt of a document at a
complainant's correct address by a member of the complainant's household
or family of suitable age and discretion constitutes constructive receipt
by complainant. See, e.g., Baunchand v. United States Postal Service,
EEOC Request No. 05920389 (May 29, 1992).
In this case, since the complainant only provided the EEO Counselor
with his work address the Commission finds that the complainant had
constructive receipt of the notice of final interview on the day it was
delivered to his place of employment. Complainant has not provided a
sufficient reason to extend the time limit for filing a formal complaint.
The Commission finds that the agency's final decision was proper and it
is AFFIRMED.
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
September 1, 2000
Date
______________
Date 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.