01A44782_r
01-13-2005
Arthur Taylor, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arthur Taylor v. United States Postal Service
01A44782
January 13, 2005
.
Arthur Taylor,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44782
Agency No. 4J-600-0053-03
Hearing No. 210-24-000063X
DISMISSAL OF APPEAL
By Notice of Appeal dated July 6, 2004, complainant filed an appeal with
this Commission from the agency's June 1, 2004 final action regarding his
EEO complaint of unlawful employment discrimination. The agency's final
action fully implemented the summary decision of the Administrative Judge
(AJ), dated May 18, 2004, finding no discrimination. Complaint alleged
that he was subjected to unlawful discrimination on the bases of age
and disability when:
The agency failed to assign overtime work to complainant on his
non-scheduled days on October 19, 2002, December 20, 2002 and on January
3, 2003, January 9, 2003 and February 12, 2003.
On October 23, 2002, complainant's supervisor threatened to remove
complainant from the Overtime Desired List, to send complainant for
a Fitness for Duty evaluation and asked complainant, �Why don't you
retire?� and
On January 8, 2003, complainant's supervisor denied complainant's
request for auxiliary assistance on his delivery route.
A copy of the certified mail return receipt card reveals that the
agency's final action was received at complainant's address of record
on June 3, 2004. A review of the final action reveals that the agency
properly advised complainant that he had thirty (30) calendar days after
receipt of its final decision to file his appeal with the Commission.
Complainant's appeal was received by the Commission in an un-postmarked
envelope on July 13, 2004. Because the request was not received within
five days of the expiration of the filing period, we find that the request
was untimely filed. See 29 C.F.R. � 1614.604(b). Complainant has not
offered adequate justification for an extension of the applicable time
limit for filing his appeal.
Accordingly, complainant's appeal is hereby DISMISSED. See 29 C.F.R. �
1614.403(c).
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
January 13, 2005
__________________
Date