01A04778_r
08-28-2001
Steve Herrera, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steve Herrera v. United States Postal Service
01A04778
August 28, 2001
.
Steve Herrera,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04778
Agency No. 4F-920-0075-00
DECISION
Upon review, we find that the complaint was properly dismissed pursuant
to 29 C.F.R. �1614.107(a)(2) on the grounds that complainant failed to
file his formal complaint in a timely manner. Complainant claimed that
he was discriminated against on the bases of his race (Hispanic), color
(white), national origin (Mexican-American), age (55), and in reprisal
for his previous EEO activity under Title VII and the Age Discrimination
in Employment Act when on January 21, 2000, his request for a higher
level assignment was denied and he was told he was not qualified due to
his alleged performance in a previous higher level assignment.
The record reveals that a notice of right to file a discrimination
complaint was received at complainant's residence on April 5, 2000.
Complainant did not file his formal complaint until April 21, 2000, one
day after the expiration of the 15-day filing period. Complainant states
on appeal that he thought his formal complaint was filed in a timely
manner. However, the record contains a copy of the postmark that was on
the envelope containing the formal complaint. The envelope was postmarked
April 21, 2000, one day after the expiration of the 15-day filing period.
We find that complainant has not submitted adequate justification for an
extension of the 15-day filing period. Accordingly, the agency decision
dismissing the complaint on the grounds of failure to file the formal
complaint in a timely manner was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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
August 28, 2001
__________________
Date