01a01756
05-26-2000
Shirley Strakal, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shirley Strakal v. United States Postal Service
01A01756
May 26, 2000
Shirley Strakal, )
Complainant, )
) Appeal No. 01A01756
v. ) Agency No. 4E-800-1145-96
) Hearing No. 320-97-8319X
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from a final action of
the agency concerning her complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.; and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> The appeal was
postmarked December 24, 1999.
The EEOC Regulations provide that a complainant may appeal an agency's
final action or dismissal of a complaint to the Commission within
30 days of receipt of the dismissal, final action, or decision.
64 Fed.Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.402). Appeals are deemed filed
on the date received by the Commission, unless postmarked earlier.
64 Fed.Reg. 37,644, 37,661 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.604). In addition, an appeal is timely filed if
received or postmarked before the expiration of the applicable filing
period, or, in the absence of a legible postmark, 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 case at hand, the record includes a copy of a postal return
receipt, showing that complainant received the final agency action on
September 27, 1999. The final agency action properly notified complainant
that her appeal must be filed with the Commission within 30 calendar days,
and provided the correct address for filing an appeal. Nevertheless,
as stated, the appeal was not filed until December 24, 1999, that is,
more than 30 days after the receipt of the final agency action.
Complainant acknowledged that her appeal was filed in an untimely manner,
stating that she misread the final agency action and initially believed
she had 90 days to file an appeal. Complainant also noted that she has
little time during the day to attend to business because she works at
night. Nevertheless, as stated, the final agency action clearly provided
the applicable appeal rights. Thus, we find that complainant has failed
to submit adequate justification, pursuant to 29 C.F.R. � 1614.604(c), for
extending the filing period beyond 30 days. Accordingly, complainant's
appeal of the final agency action is untimely filed, and is DISMISSED.
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:
_05-26-00_________ __________________________________
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 claimant, claimant's representative
(if applicable), and the agency on:
_________________________ __________________________
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.