01A31423_r
04-17-2003
Scott W. Geiger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Scott W. Geiger v. United States Postal Service
01A31423
April 17, 2003
.
Scott W. Geiger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31423
Agency No. 4-J-480-0121-02
DECISION
The Commission finds that the instant complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that complainant
failed to timely file a complaint. The record contains a notice of
right to file individual complaint that was received by complainant's
attorney on October 7, 2002. The notice states that if a complaint is
filed, it must be filed within fifteen days after receipt of the notice.
On December 13, 2002, complainant filed an EEO complaint wherein he
claimed that he was discriminated against on the bases of his disability
(bi-polar disorder, major depression) and in reprisal for his previous
EEO activity under the Rehabilitation Act when on August 14, 2002, he
was issued an emergency suspension and on September 17, 2002, when he
was issued a notice of removal.
The agency dismissed the complaint on the grounds that complainant failed
to file the complaint in a timely manner. The agency determined that
complainant's complaint was not received within the 15-day filing period.
The agency noted that complainant's attorney inquired on December 13,
2002, about the status of the complaint, and he was told that a formal
complaint had not been filed. The agency further noted that complainant's
attorney stated that his secretary had mailed the complaint on October
11, 2002.
Upon review of the record, we observe that the record contains the
notice of right to file individual complaint cited by the agency.
The notice was received by complainant's attorney on October 7, 2002.
Complainant's attorney argues on appeal that his secretary mailed the
formal complaint on October 7, 2002, and that the complaint must have been
lost in the mail or the agency must have misplaced the complaint. We find
that the evidence presented by complainant is not sufficient to establish
that the formal complaint was filed in a timely manner. Therefore, we
find that the instant formal complaint was not filed until December 13,
2002, after the expiration of the 15-day filing period. Accordingly,
the agency's dismissal of the complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 17, 2003
__________________
Date