01a01127
04-14-2000
Deborah A. Shriver, Complainant, William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Deborah A. Shriver, )
Complainant, )
)
) Appeal No. 01A01127
) Agency No. 4E-852-0112-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
__________________________)
DECISION
Complainant filed an appeal with the Commission from a final
agency decision concerning her complaint of unlawful employment
discrimination.<1> EEOC Regulation at 64 Fed. Reg. 37,644, 37,659 (to be
codified at 29 C.F.R. � 1614.402(a)) provides that a final agency decision
on an EEO complaint may be appealed to the Commission within thirty
(30) days of the complainant's receipt of the final agency decision.
EEOC Regulation 64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. �
1614.403(c)) provides that if a complainant does not file an appeal within
the designated time limits, the appeal will be untimely and shall be
dismissed by the Commission. EEOC Regulation 29 C.F.R. � 1614.403(a)
provides that the appeal must be filed with the Director, Office of
Federal Operations, by mail, by personal delivery, or by facsimile.
The record reflects that complainant received the final agency decision
on September 14, 1999. Complainant's appeal, postmarked November 16,
1999, was therefore beyond the thirty (30) day time limit set forth
by our Regulations. The record reveals that the final agency decision
explicitly informed complainant of the time limits on her right to appeal.
The Commission's regulations governing the computation of the time limits
allow for waiver and/or equitable tolling. 29 C.F.R. � 1614.604(c).
On appeal, complainant stated that the nature of her disabilities
(bilateral carpal tunnel syndrome and overuse of upper body syndrome) and
the volume of work she was required to perform for the agency concerning
her workplace injury resulted in her failing to realize that she was late
with her appeal. Complainant's explanation is insufficient to invoke
waiver or equitable tolling. Accordingly, the appeal is untimely and
is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at WWW.EEOC.GOV.