Lorraine Smith, Appellant,v.William H. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 26, 1999
01982799 (E.E.O.C. Feb. 26, 1999)

01982799

02-26-1999

Lorraine Smith, Appellant, v. William H. Henderson, Postmaster General, United States Postal Service, Agency.


Lorraine Smith v. United States Postal Service

01982799

February 26, 1999

Lorraine Smith, )

Appellant, )

)

v. ) Appeal No. 01982799

) Agency No. 4-H-330-0253-97

William H. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 4, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) dated February 11, 1998, pertaining

to 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. In her complaint, appellant alleged that she was subjected to

discrimination on the bases of race (African-American) and sex (female)

when on December 13, 1996, she was verbally threatened by a supervisor

during a "Service Talk."

In the final decision, the agency dismissed appellant's complaint on

the grounds that the formal complaint was filed in an untimely manner.

A copy of the return-receipt card shows that appellant received the

Notice of Right to File Individual Complaint on October 15, 1997.

The agency found that the formal complaint was filed on November 10,

1997, and, therefore, dismissed appellant's complaint pursuant to EEOC

Regulation 29 C.F.R. �1614.105(d) for failure to file a formal complaint

within 15 days of receiving her Notice of Right to File.

On appeal, appellant contends that her representative was unable to file

her complaint because of a heavy arbitration schedule until on or after

October 31, 1997. Appellant claims that her complaint was mailed on

November 4, 1997.

EEOC Regulation 29 C.F.R. �1614.106(b) provides that a complaint must

be filed within 15 days of receipt of the notice of the right to file a

complaint. In the present case, it is undisputed that appellant received

the Notice on October 15, 1997; therefore, she had until October 30, 1997,

within which to timely file her formal complaint. The record indicates

that appellant filed her complaint by mail; however, the envelope in which

the complaint was mailed contains an illegible postmark. EEOC Regulation

29 C.F.R. �1614.604(b) provides that a document shall be deemed timely

if it is delivered in person or postmarked before the expiration of the

applicable filing period, or in the absence of a legible postmark, if it

is received by mail within five days of the expiration of the applicable

filing period. Therefore, appellant's complaint had to be received by

the agency by November 4, 1997. The agency stamped appellant's complaint

as received on November 10, 1997.

While the time limits are subject to waiver, estoppel and equitable

tolling, we find that appellant failed to present adequate justification

to warrant an extension of the applicable time limit. Appellant contends

that her union representative did not have time to help her file until

after October 31, 1997. We find, however, that the Notice of Right to

File explicitly informed appellant of the applicable fifteen (15) day time

limit to file. See Miller v. Federal Deposit Insurance Corporation,

EEOC Request No. 01955747 (June 19, 1996) (holding that where notice of

right to file letter states the applicable time limit, claiming lack of

knowledge of the limit does not excuse late filing). Furthermore, EEOC

Regulation 29 C.F.R. �1614.605(e) provides that a complainant shall at

all times be responsible for the proceeding with the complaint whether

or not she has designated a representative. Davis v. Department of

the Navy, EEOC Request No. 01965312 (February 5, 1997) recons. denied

EEOC Request No.05970564 (September 11, 1998) (failure of attorney to

prepare documents within thirty (30) days does not excuse late appeal

under tolling considerations of 29 C.F.R. �1614.604(c)). Therefore,

we find that the agency properly dismissed appellant's complaint as

untimely and the agency's decision is hereby AFFIRMED.

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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

Feb 26,1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations