01977075
11-02-1998
Jeanne M. Bartkey, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northland District) Agency.
Jeanne M. Bartkey v. United States Postal Service
01977075
November 2, 1998
Jeanne M. Bartkey, )
Appellant, )
) Appeal No. 01977075
v. ) Agency No. 1-I-552-0001-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Northland District) )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her 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 Rehabilitation Act of 1973, 29 U.S.C.�
791 et seq. The final agency decision was issued on August 27, 1997.
The appeal was postmarked September 24, 1997. Accordingly, the appeal
is timely, (See 29 C.F.R. � 1614.402(a)), and is accepted in accordance
with EEOC Order 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
formal complaint as untimely.
BACKGROUND
Appellant filed her formal complaint on August 1, 1997. In her complaint
appellant alleges that she is constantly disciplined because of her sex
(female) and physical disability (migraines). The record reflects that
Appellant received her final interview notice on July 16, 1997, via
certified mail. The final interview notice stated in part:
You have fifteen (15) calendar days upon receipt of this letter to file
a formal complaint. Your complaint may be dismissed on the following
basis if your response is untimely. Code of Federal Regulations
(C.F.R.) 1614.106 states in part: A complaint must be filed within 15
days of receipt of the notice required by 1614.105(d), (e) or (f).
In addition, the record shows that appellant's complaint was postmarked
August 1, 1997, 16 days following the receipt of the final interview
notice.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106 (a) and (b), requires a complainant
or her representative to submit a written complaint to an appropriate
agency official within 15 calendar days after notice of the date of
final interview with an Equal Employment Opportunity Counselor.
According to the agency and the record herein, appellant received a
final interview on July 16, 1997. At that time she was informed of her
right to file a formal complaint and the 15-day deadline in which to do
so. The agency dismissed appellant's complaint because it was filed on
the 16th day following her notice of final interview and accordingly,
it was untimely.
While appellant does not dispute receiving the notice of final interview
on July 16, 1997, she contends, in an unsworn statement, that she called
an EEO representative on the day she mailed her appeal. According to
appellant, she was advised by the EEO representative that it was
"okay to mail it that day." Appellant further states that she "was
not told to drop it off directly." Accordingly, appellant states that
she dropped off her Appeal at her local post office "that afternoon."
The post office did not postmark the package until the following day.
Appellant argues that she was not given the proper information regarding
the filing process and does not believe that she should be "penalized
for a lack of communication or a postmark deficiency."
We find that the notice of final interview sufficiently notified
appellant of her filing requirements. While appellant's mere assertion,
unsupported by affidavit or other evidence, is not enough to support
the contention that an EEO representative provided misinformation to
appellant, we nevertheless find that the statement allegedly made by
the EEO representative was information consistent with the notice of
final interview and was not misleading. See Bixler v. Air Force, EEOC
Appeal No. 01941332 (March 25, 1994) (the mere assertion by appellant
that an EEO Counselor told him that he could not file an EEO complaint
is not enough to support such a contention.) We find it unreasonable for
appellant to have interpreted the EEO representative's alleged statement
in any manner other than requiring the appeal to be postmarked that day.
Accordingly, if appellant placed her appeal in a mail box or with the
postal service before the last pick-up, the appeal would have been
postmarked that day and timely filed.
Moreover, we note that we need not determine whether an EEO representative
misled appellant regarding the EEO process to determine whether the
complaint was untimely. Since the agency has shown that appellant
had actual or constructive knowledge of the process, by her receipt of
the notice of final interview, the alleged verbal misinformation that
appellant may have received from the EEO representative does not excuse
her failure to file her complaint in a timely fashion. See Cargill v. Air
Force, EEOC Appeal No. 01953051 (March 18, 1996); Cargill v. Air Force,
EEOC Appeal No. 01945209 (January 10, 1995). Accordingly, since the
record indicates that appellant received the notice of final interview
which clearly set forth the time requirements and warned of possible
dismissal in the event that appellant failed to timely file her formal
complaint, she cannot be excused from failing to timely file.
In addition, appellant seems to be arguing that she dropped off her appeal
with the postal service before the postal service's last pick up and
accordingly, it should have been postmarked that day. Appellant claims
that there was some error on the postal service's part. Appellant, in an
unsworn statement, fails to provide any details whatsoever with respect to
the time she dropped off her appeal with the postal service. Moreover,
she fails to provide any additional evidence that may corroborate her
vague argument that she did in fact timely mail her appeal. Considering
the lack of support for appellant's argument and the improbability that
the postal service erred in its postmarking, we are not convinced by
appellant's contention that there was a "postmark deficiency."
Accordingly, and for the reasons stated hereinabove, we hereby AFFIRM
the agency's dismissal of appellant's complaint for untimely filing of
the formal complaint.
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:
November 2, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations