01A14458
10-23-2001
Andrew J. Johnson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Andrew J. Johnson v. United States Postal Service
01A14458
October 23, 2001
.
Andrew J. Johnson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01A14458
Agency No. 4-H-390-0077-99
DECISION
Complainant filed an appeal with this Commission from a final action of
the agency concerning his complaint of discrimination in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e
et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
EEOC Regulation 29 C.F.R. �1614.402(a) provides that appeals to the
Commission must be filed within 30 calendar days of the date on which a
complainant receives a dismissal, action, or decision. EEOC Regulation
29 C.F.R. � 1614.402(b) states that if the complainant is represented by
an attorney of record, then the 30-day time period provided in paragraph
(a) of this section within which to appeal shall be calculated from the
receipt of the required document by the attorney. In all other instances,
the time period within which to appeal shall be calculated from the
receipt of the required document by the complainant.
Appeals are deemed filed on the date received by the Commission,
unless postmarked earlier. 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 5 days of the expiration of the applicable
filing period. 29 C.F.R. �1614.604(b).
In the case at hand, complainant received the final agency action
on April 11, 2001. Complainant was not represented by an attorney.
The final agency action properly notified complainant that his appeal
must be filed with the Commission within 30 calendar days, and provided
the correct address for filing an appeal.
Complainant's appeal was legibly postmarked on July 9, 2001. Consequently,
using the postmark date as the official filing date, the appeal is deemed
untimely because it was filed more than 30 days after complainant received
a copy of the FAD. Complainant provided no adequate justification for an
extension of the applicable time limit for filing his appeal. Accordingly,
complainant's appeal is hereby DISMISSED.
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
October 23, 2001
__________________
Date