01A05769
11-08-2000
Debra Self, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Debra Self v. United States Postal Service
01A05769
November 8, 2000
.
Debra Self,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05769
Agency No. 4E-840-0030-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to her 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.<1> The Commission accepts the
appeal in accordance with 29 C.F.R. �1614.405.
On July 20, 2000, the agency issued a decision dismissing the complaint
on the grounds that it was untimely filed. Specifically, the agency
determined that complainant received the Notice of Right to File
Individual Complaint, stating that she must file within 15 calendar days
of receipt, on April 24, 2000. Complainant did not file the complaint
until June 9, 2000, approximately 31 days past the expiration of the
time limitation.
On appeal, complainant, through her representative, contends that she
did receive the Notice on April 24, 2000. Complainant's representative
argues that complainant determined that the letter containing the Notice
was related to an earlier complaint; that it would also be sent to her
representative; and that therefore complainant did not open it until she
met with her representative on June 9, 2000. Complainant's representative
argues that the agency was required to send him the Notice, and failed
to do so.
In response, the agency asserts that complainant's failure to open the
letter is insufficient justification for her untimeliness. Further,
the agency argues that complainant is, at all times, responsible for
proceeding with a complaint, whether or not a representative has been
designated.
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with the agency that allegedly discriminated against the
complainant within fifteen (15) calendar days after the date of receipt
of the Notice of Right to File an Individual Complaint required by 29
C.F.R. �1614.105(d), (e), or (f). A complaint is deemed timely if it is
received or postmarked before the expiration of the applicable filing
period, or in the absence of a legible postmark, if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. �1614.604(b). This time limit is subject to waiver,
estoppel, and equitable tolling. 29 C.F.R. �1614.604(c). An agency shall
dismiss a complaint which is not filed within the fifteen day time period.
See 29 C.F.R. �1614.107(a)(2).
Here, it is undisputed that complainant received the Notice on April
24, 2000. The Notice informed complainant of her right to file a
complaint within fifteen calendar days after receipt of the Notice.
Complainant, however, did not file the complaint until June 9, 2000,
well beyond the time limitation. A review of the record also reveals
that complainant designated a representative prior to the filing of
the complaint. However, complainant's representative is an �Employee
Advocate� and, as noted in his organizational stationary, he is not
an attorney. In cases where �complainant designates an attorney as
representative, service of all official correspondence shall be made
on the attorney and the complainant, but time frames for receipt
of the materials shall be computed from the time of receipt by the
attorney.� 29 C.F.R. �1614.605(d) (emphasis added). There is no
attorney as representative in the present case. Further, at all time,
complainant is responsible for proceeding the complaint whether or not
a representative has been designated. See 29 C.F.R. �1614.605(e).
Therefore, we find that agency properly based the fifteen-day time
limitation upon receipt by complainant.
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby 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
November 8, 2000
__________________
Date
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.