Kenneth W. Dodson, Appellant,v.William S. Cohen, Secretary, Department of Defense, (National Imagery and Mapping Agency), Agency.

Equal Employment Opportunity CommissionMay 14, 1999
01986467 (E.E.O.C. May. 14, 1999)

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