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