01976808
10-27-1998
Charles Johnson, Appellant, v. Willliam J. Henderson, Postmaster General, United States Postal Service, Agency.
Charles Johnson, )
Appellant, )
)
v. ) Appeal No. 01976808
) Agency No. 4G-720-0026-97
Willliam 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., and the Age Discrimination in Employment
Act of 1967, as amended (ADEA), 29 U.S.C. �621 et seq. The final agency
decision was received by appellant on August 28, 1997. The appeal was
postmarked September 10, 1997. Accordingly, the appeal is timely (see 29
C.F.R. �1614.402(a)), in accordance with EEOC Order No. 960, as amended.
On October 2, 1996, appellant initiated contact with an EEO Counselor.
Informal efforts to resolve his concerns were unsuccessful.
On March 18, 1997, appellant received a Notice of Right to File an
Individual Complaint. Therein, appellant was apprised that he had
fifteen days from the date of its receipt in which to timely file a
formal complaint.
On April 10, 1997, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the bases of
race and age.
On August 26, 1997, the agency issued a final decision, dismissing
appellant's complaint on the grounds that it was untimely filed.
Specifically, the agency found that appellant received a Notice of Final
Interview on March 18, 1997, and that his formal complaint was filed on
April 10, 1997, which was beyond the fifteen-day limitation period for
filing a timely complaint.
On appeal, appellant's attorney argues that upon his receipt of the Notice
of Final Interview on March 18, 1997, appellant construed this document
as the agency's final decision which gave him the right to file an appeal
with the Commission. Appellant's attorney argues that, as a consequence,
appelalnt mailed a formal complaint to the Commission on March 31, 1997,
which was received on April 2, 1997. Appellant's attorney argues that
appellant thereafter mailed a complaint to the agency that was received
on April 11, 1997; and that subsequent to the agency's receipt of the
formal complaint, appelant was led to believe for five months that his
complaint was being investigated, until the agency issued the instant
final decision. Appellant's attorney further argues that appellant was
in substantial compliance with the EEO regulations.
In response, the agency argues that appellant's complaint was properly
dismissed for the reasons set forth in its final decision.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a complaint required by 29 C.F.R. �1614.105(d), (e), or (f).
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).
The record reflects that appellant received a Notice of Right to File
Individual Complaint on March 18, 1997. The Notice specifically informed
appellant that he had to file a formal compliant within fifteen days of
the date of receipt of the Notice for the complaint to be timely filed.
Appellant's complaint was filed with the agency on April 10, 1997, beyond
the fifteen-day limitation period. On appeal, appellant's attorney argues
that appellant inadvertently construed his Notice as a final decision,
with the right to file an appeal with the Commission; and that as a
consequence, appellant sent his complaint to the Commission on March
31, 1997.
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 (S0993)
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. 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 (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:
Oct. 27, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations