01970538
10-29-1998
Geraldine B. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic), Agency.
Geraldine B. Smith v. United States Postal Service
01970538
October 29, 1998
Geraldine B. Smith, )
Appellant, )
)
v. ) Appeal No. #01970538
) Agency No. #4C-442-1110-94
William J. Henderson, ) Hearing No. #220-95-5351X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic), )
Agency. )
______________________________)
DISMISSAL OF APPEAL
Appellant filed an appeal with the Commission from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination.
By regulation, appeals to the Commission must be filed within 30 calendar
days after an appellant receives notice of the final agency decision.
29 C.F.R. � 1614.402(a). Appeals are deemed filed on the date received
by the Commission, unless postmarked earlier. 29 C.F.R. �1614.604(b).
In this case, the record reflects that the agency's final decision
was dated and mailed on July 24, 1996. Appellant received the FAD on
Saturday, July 27, 1996, as evidenced by a certified mail return receipt.
A review of the FAD reveals that the agency correctly advised appellant
she had thirty (30) calendar days after receipt of the FAD to file a
notice of appeal with the Commission. The thirtieth day after appellant's
appeal was Monday, August 26, 1996. See 29 C.F.R. �1614.604(d).
However, appellant's appeal is legibly postmarked October 22, 1996,
beyond the 30-day time limit set by the Commission's regulations.
Pursuant to 29 C.F.R. �1614.604(c), the aforementioned time limitation
may be subject to extension through waiver, estoppel, or equitable
tolling of the limitation period. However, appellant has submitted no
explanation whatsoever for her failure to file her appeal in a timely
fashion; therefore, the Commission finds no basis upon which to grant an
extension of the time for filing. Accordingly, the appeal is untimely
and is DISMISSED. See 29 C.F.R. �1614.403(c).
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. �l6l4.604(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 29, 1998 _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations