01994187
04-19-2001
Thomas J. Butler, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Thomas J. Butler v. United States Postal Service
01994187
April 19, 2001
.
Thomas J. Butler,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01994187
Agency No. 4A110003299
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 30, 1999, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of reprisal for prior protected activity when:
he was issued a Notice of Sick Leave Restriction, dated September 22,
1998 and
he was issued a Letter of Warning, dated September 23, 1998, charging
him with Failure to Follow Instructions and Absent Without Leave (AWOL).
The agency dismissed complainant's claim pursuant to EEOC Regulation
29 C.F.R. � 1614.107 (b), for untimely filing of his formal complaint.
On appeal, complainant contends that it was possible that his complaint
was delayed in being postmarked. Complainant also states that he had no
prior problem with untimely filings and that the Human Resource Manager
for the New York Metro Area was more concerned with a postmark than
with the merits of his claim. In its response the agency states that
the Notice of Right to File which complainant received contained clear
instructions with regard to the timely filing of a formal complaint.
Because complainant failed to meet the deadline, the agency requests
that we affirm the decision to dismiss complainant's claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails
to comply with the applicable time limits contained in 29 C.F.R. �
1614.106, which, in turn, requires the filing of a formal complaint
within fifteen (15) days of receiving notice of the right to do so.
However, under Commission regulations the time limits for filing a
complaint of discrimination following receipt of a Notice of Right to
File may be waived or tolled if the complainant provides a reasonable
excuse for the late filing. 29 C.F.R. �1614.604(c).
Here, the record indicated that complainant received a Notice of Right
to File on December 22, 1998. The formal complainant is dated as
received on January 11, 1999. The envelope containing the complaint has
two postmarks: (1) a hand stamped postmark of January 6, 1999; and (2) a
machine stamped postmark of January 8, 1999. The official machine postdate
is the date on which complainant filed his complaint. O'Donnell v. United
States Postal Service, EEOC Appeal No. 01952754 (Aug. 8, 1995). Therefore,
we find that complainant filed his complaint on January 8, 1999, which
is beyond the 15 day time limit for filing a complaint.
As complainant has failed to set forth any evidence or argument which
would justify the tolling of the fifteen day time limit, the agency's
decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19, 2001
__________________
Date