01986467
05-14-1999
Kenneth W. Dodson, Appellant, v. William S. Cohen, Secretary, Department of Defense, (National Imagery and Mapping Agency), Agency.
Kenneth W. Dodson v. Department of Defense
01986467
May 14, 1999
Kenneth W. Dodson, )
Appellant, )
)
v. ) Appeal Nos. 01986466
) 01983968
) 01983795
) 01986467
) 01984236
) 01983962
) Agency Nos. OG-96-09
William S. Cohen, ) OG-96-24
Secretary, ) OG-96-25
Department of Defense, ) OG-96-31
(National Imagery and Mapping ) OG-96-33
Agency), ) OG-96-55
Agency. ) OG-96-04
) OG-96-07
) OG-96-08
______________________________) OG-96-14
DISMISSAL OF APPEALS
Appellant filed six appeals with this Commission from final decisions
of the agency concerning his complaints of unlawful employment
discrimination. Two appeals were postmarked on April 10, 1998, and four
appeals were postmarked on April 15, 20, 24, and 25, 1998.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after an appellant receives notice of the final
agency decision. Appeals are deemed filed on the date received by the
Commission, unless postmarked earlier. 29 C.F.R. �1614.402(a).
The record, undisputed by appellant, indicates that on February 21,
1997, the agency issued a final decision addressing four of appellant's
complaints (Agency Nos. OG-96-04, OG-96-07, OG-96-08, and OG-96-14),
including notice of the right to appeal, via certified mail, return
receipt requested, to appellant's address of record (the same address
appellant identified as his address on appeal, as well as on his
formal complaints). The mail was not claimed by appellant, and was,
subsequently, returned back to the agency on March 4, 1997, marked
"Refused" and "Return to Sender." After one year, in March 1998,
appellant asked for and received a copy of that final decision, from
which he appeals.
On April 11, 1997, the agency issued a final decision addressing six
of appellant's complaints (Agency Nos. OG-96-09, OG-96-24, OG-96-25,
OG-96-31, OG-96-33, and OG-96-55), including notice of the right to
appeal, via certified mail, return receipt requested, to appellant's
address of record (the same address appellant identified as his address
on appeal, as well as on his formal complaints). The mail was again not
claimed by appellant, and was, subsequently, returned back to the agency
on April 16, 1997, marked "Refused" and "Return to Sender." After one
year, in April 1998, appellant asked for and received a copy of that
final decision, from which he now appeals.
The record contains a certified declaration from the agency's EEO
Specialist stating that she mailed the final decisions at issue
to appellant's address of record, however, he refused to claim his
certified mail. Further, the Specialist stated that in a deposition taken
pursuant to one of appellant's Merit Systems Protection Board appeals,
appellant admitted that he was refusing to accept mail from the agency.
According to the Specialist, appellant was very familiar with the EEO
process, based on his 35 EEO complaints and subsequent appeals to the
Commission, and that he knew final decisions had been issued on his
cases but did not request copies until over a year after their issuance.
Under the circumstances, we find that the agency acted with due
diligence to provide appellant with his final decisions; however,
appellant failed to act with due diligence since he refused to accept
the agency's certified mail and waited over a year to request copies
of the final decisions. See Woehr v. USPS, EEOC Request No. 05960657
(July 3, 1997); see also, Yokotobi v. Department of Veterans Affairs,
EEOC Request No. 05891040 (November 27, 1989) (all parties in the
EEO process have duty to avoid undue delay). While the Commission's
regulations governing the computation of time limits allow for waiver
and/or equitable tolling, 29 C.F.R. �1614.604(c), appellant failed to
submit adequate justification to invoke waiver or equitable tolling.
Accordingly, the appeals are hereby DISMISSED as untimely.
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:
May 14, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations