01982095
03-04-1999
Thomas E. Boudreau, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas E. Boudreau v. United States Postal Service
01982095
March 4, 1999
Thomas E. Boudreau, )
Appellant, )
)
v. ) Appeal No. 01982095
) Agency No. 4B-020-0209-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. Appellant received the final agency decision
on December 24, 1997. The appeal was postmarked January 14, 1998.
Accordingly, the appeal is timely (see 29 C.F.R. �1614/402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that he failed to file his formal complaint in
a timely manner.
BACKGROUND
Appellant initiated contact with an EEO Counselor on August 19, 1997.
Appellant received a Notice of Right to File a Discrimination Complaint
on November 14, 1997. In a formal EEO complaint dated November 25,
1997, and received by the agency on December 8, 1997, appellant alleged
that he had been discriminated against in reprisal for his previous EEO
activity when:
1. His request for sick leave for August 9 and 11, 1997 was denied; and
2. On August 16, 1997, he was issued a Notice of 7-day Suspension,
charging him with failure to perform his assigned duties in a satisfactory
manner.
In its final decision, the agency dismissed appellant's complaint on
the grounds that appellant failed to file the formal complaint in a
timely manner. The agency determined that the envelope containing the
complaint was hand-canceled November 25, 1997. According to the agency,
the complaint was received on December 8, 1997, four days after the last
day of the filing period, Thursday, December 4, 1997.
On appeal, appellant maintains that he placed the envelope containing
the complaint in the inter-office mail pouch on November 25, 1997.
In response, the agency asserts that it received the formal complaint 24
days after appellant received his Notice of Right to File Discrimination
Complaint. The agency maintains that since the complaint lacked an
official postmark, it was filed four days after the expiration of the
filing period. The agency notes that the date of November 25, 1997,
as written on the complaint, appears to be written over the number 12,
representing the month of December.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106 and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.604(b) provides that a document shall
be deemed timely if it is delivered in person 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.
EEOC Regulation 29 C.F.R. �1614.604(d) provides that the first day
counted shall be the day after the event from which the time period
begins to run and the last day of the period shall be included, unless
it falls on a Saturday, Sunday or Federal holiday, in which case the
period shall be extended to include the next business day.
Appellant received a Notice of Right to File Discrimination Complaint on
November 14, 1997. The envelope containing appellant's formal complaint
lacks an official postmark. The complaint was received by the agency on
December 8, 1997. The fifteenth day following appellant's receipt of
the Notice would have fallen on Saturday, November 29, 1997, requiring
the extension of the 15-day filing period to the next business day,
or Monday, December 1, 1997. Given the lack of an official postmark,
the filing period is extended by five days to Saturday, December 6,
1997, and then to the next business day, or Monday, December 8, 1997.
See Kolke v. Department of the Navy, EEOC Request No. 05950648 (October
21, 1996). We find that the complaint was filed in a timely manner
since it was received by the agency on December 8, 1997. Accordingly,
the agency's decision to dismiss appellant's complaint on the grounds
of untimeliness was improper and is REVERSED. The complaint is hereby
REMANDED for further processing in accordance with the ORDER below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Mar 4, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations