01985184
09-10-1999
Daniel F. Seper, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Daniel F. Seper v. Department of the Air Force
01985184
September 10, 1999
Daniel F. Seper, )
Appellant, )
)
v. ) Appeal No. 01985184
) Agency No. SF1L96034
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
_______________________________)
DECISION
Appellant filed an appeal with the Commission from a final decision of the
agency concerning his complaint of unlawful employment discrimination. The
appeal was filed via facsimile on June 19, 1998.
By regulation, appeals to the Commission must be filed within thirty (30)
calendar days after the appellant receives the final agency decision
(FAD). 29 C.F.R. �1614.402(a). If the appellant is represented by an
attorney of record, the 30-day time period shall be calculated from the
receipt of the required document by the attorney. In all other instances,
the time within which to file the appeal shall be calculated from the
receipt of the FAD by the appellant. 29 C.F.R. �1614.402(b).
The record reveals that the FAD was received at appellant's address of
record on May 15, 1998. The file contains a certified mail return receipt
signed by an unidentified individual at appellant's address on that date.
Where such a receipt has been signed by an unidentified individual
at the complainant's address, the Commission has found that there is
a presumption of constructive receipt on that date, of the document,
by appellant. See Pazinick v. USPS, EEOC Request No. 05930337 (September
10, 1993); and Knowles v. Department of Defense, EEOC Request No. 05920956
(March 18, 1993). Although this presumption is rebuttable, appellant has
presented no evidence demonstrating that the individual who signed for his
mail was not a family or household member of suitable age or discretion
to do so. See Fontanella v. GSA, EEOC Request No. 05940131 (April 10,
1995); Baunchard v. USPS, EEOC Request No. 05920389 (May 29, 1992).
A review of the agency's FAD indicates that appellant was properly
notified of the time, place, and procedure for filing a timely appeal
with the Commission. Therefore, based on the evidence before us, we
find that appellant did not file his appeal in a timely manner.
On appeal, appellant stated that he was "[o]ut of town for a long
period of time and did not receive" the decision on the date that it
was delivered to his home. We find that appellant has not provided an
adequate justification for applying the equitable tolling provisions
of 29 C.F.R. �1614.604(c). In particular, appellant did not provide
details concerning: (1) the reason he was out of town, for example,
was it an unexpected emergency; or (2) the date he returned to his
home. Consequently, we are unable to determine if he had a sufficient
amount of time, upon his return, to file his appeal in a timely manner.
Accordingly, for the foregoing reasons, we find that appellant's appeal
is untimely and it is DISMISSED.
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. 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:
September 10, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations