01976488
10-21-1998
Thomas J. McRae, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas J. McRae v. United States Postal Service
01976488
October 21, 1998
Thomas J. McRae, )
Appellant, )
)
v. ) Appeal No. 01976488
) Agency No. 4-J-600-0010-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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., and the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The final agency decision was received by
appellant on June 21, 1997. The appeal was postmarked August 21, 1997.<1>
Accordingly, the appeal is deemed timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint as untimely.
BACKGROUND
Appellant contacted an EEO counselor on September 11, 1996, regarding
allegations of discrimination. Specifically, appellant alleged
that he was discriminated against when (1) on September 5, 1996 his
request for light duty assignment was denied, and (2) on December 3,
1996, appellant was issued a Notice of Removal for being physically
unfit to perform his duties. Informal efforts to resolve appellant's
concerns were unsuccessful. On April 18, 1997 appellant received an
agency document entitled "Notice of Right to File Individual Complaint."
Therein, the agency informed appellant that he had fifteen (15) days from
the date of receipt of the notice in which to file a formal complaint.
Appellant filed a formal complaint postmarked May 8, 1997, and received by
the agency on May 15, 1997. Therein, appellant alleged that he was the
victim of unlawful employment discrimination on the bases of disability
(degenerative knee condition) and reprisal (prior EEO activity).
On June 12, 1997, the agency issued its final decision dismissing
appellant's complaint on the grounds that appellant failed to timely file
a written complaint after having received a notice of his right to file
a formal complaint. Specifically, the agency determined that appellant
had fifteen (15) days from the date of his receipt of the notice in
which to file a timely complaint. The agency further determined that
appellant's formal complaint filed on May 8, 1997, was filed twenty (20)
days after his receipt of the Notice of Right to File.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right
to file a complaint required by 29 C.F.R. �1614.105(d), (e), or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
The record indicates that appellant received the Notice of Right to File
on April 18, 1997. The notice informed appellant that he had fifteen
(15) days from the date of receipt of the notice in which to file a
formal complaint. The record further reflects that appellant did not file
his complaint within fifteen (15) days of his receipt of the notice but,
instead filed the formal complaint on May 8, 1997. On appeal, appellant
offers no explanation for his delay in filing the formal complaint.
The record is devoid of any persuasive evidence that would support a
decision to extend the applicable time limits for any reason.
CONCLUSION
Accordingly, the decision of the agency dismissing appellant's complaint
as untimely is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
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:
October 21, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1It appears as though appellant's appeal was originally filed on July 17,
1997. However, there seemed to be a question as to whether appellant had
yet received the agency's final decision. By letter dated August 11, 1997,
the Commission returned appellant's appeal. The letter further instructed
that once appellant had received the agency's final decision, appellant was
to return the letter to the Commission within ten (10) days or, by August
21, 1997.