01985593
02-01-2000
Stephen Szczesny v. United States Postal Service
01985593
February 1, 2000
Stephen Szczesny )
Complainant, )
)
v. )
) Appeal No. 01985593
) Agency No. 4A-0701101-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Northeast/New York Metro Areas )
Agency. )
____________________________________)
DECISION
Complainant filed an appeal with this Commission from a final agency
decision ("FAD") dismissing his 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.<1> The final
agency decision was dated May 28, 1998 and received by the complainant
on June 2, 1998. The appeal was postmarked July 1, 1998. Accordingly,
the appeal is timely (64 Fed. Reg. 37659 July 12, 1999 (to be codified
at 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
The agency dismissed complainant's complaint based on his failure to file
it within fifteen (15) days of his receipt of a Notice of Final Interview
or in the alternative on the grounds that complainant failed to prove
by a preponderance of the evidence that discrimination had occurred.
The record reflects that complainant received a Notice of Final
Interview advising him to file a formal complaint on August 19, 1996.
This required him to file a formal complaint no later than September
3, 1996. The postmark on the envelope containing his formal complaint
was dated September 4, 1996, one day after the fifteen (15) day time
period for filing. 29 C.F.R.�1614.106(b). Our regulations require us
to dismiss complaints which have not been timely filed. 64 Fed. Reg.
37656, July 12, 1999 (to be codified at 29 C.F.R. �1614.107(b).)
Consequently, this appeal must be denied.
CONCLUSION
In accordance with the foregoing, the Commission Affirms the agency's
dismissal of the complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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:
2/1/00 _________________________
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 complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Equal Employment Assistant
_________________________
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.