01984064_r
05-20-1999
Eric Waddell, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Eric Waddell, )
Appellant, )
)
v. ) Appeal No. 01984064
) Agency No. 1-D-291-0017-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 29, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on April 6, 1998,
pertaining to 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 �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. In its FAD, the agency dismissed
appellant's complaint, pursuant to EEOC Regulation 29 C.F.R. �1614.107(b),
for failure to timely file a formal complaint. The agency found that
appellant received a Notice of Right to File on February 13, 1998.
Further, the agency found that appellant did not file a formal complaint
until March 11, 1998, twenty-six (26) days after he received his Notice
of Right to File.
On appeal, appellant claims, through his attorney, that he timely sent the
formal complaint in the same envelope as a Change of Representation form.
When appellant did not receive an acknowledgment of his complaint,
however, appellant's attorney called on March 9, 1998, to check on
the complaint. Appellant then had a conference call with the agency
EEO officer when no copy of the complaint was found. Appellant argues
that during the conference call, the agency EEO officer suggested
that appellant's complaint was misfiled. When no copy of the formal
complaint was found, another copy of the form was sent to appellant,
which appellant completed and mailed to the agency on March 11, 1998.
In response, the agency contends that it received a copy of appellant's
Change of Representation form on February 25, 1998, but that it did
not receive appellant's formal complaint. The agency acknowledges that
appellant sent a letter dated March 4, 1998, asking whether the formal
complaint had been received. By letter dated March 6, 1998, the EEO
officer denied that a formal complaint had been received. Subsequent to
the March 9, 1998 conference call, the EEO officer sent a letter to
appellant, explaining that she reviewed the files to ensure that the
complaint was not misplaced, and was unable to find the complaint.
Further, the agency claims that it asked appellant to send a copy of
the complaint that he claims to have earlier filed, but that neither
appellant nor his attorney had a copy of the complaint. The agency then
sent appellant a blank form to file again.
The record contains a copy of the Notice of Right to File dated February
12, 1998, and a certified receipt signed by appellant on February 13,
1998. The other letters, as outlined by the agency's response, are
part of the record, as is a copy of appellant's Change of Representation
form, stamped as received by the agency EEO office on February 25, 1998.
The record also contains a copy of appellant's Formal Complaint, dated
March 11, 1998.
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 in this case indicates that appellant received a Notice of
the Right to File a Formal Discrimination Complaint on February 13, 1998.
The notice informed appellant that he had fifteen 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 a formal complaint within
fifteen days of his receipt of the notice but, instead filed the formal
complaint on March 11, 1998. Although appellant claims that he filed a
formal complaint on February 25, 1998, the agency provided information
confirming that it never received the complaint, and that it checked
its files to ensure that the complaint was not misfiled. Accordingly,
appellant has failed to provide adequate justification, pursuant to 29
C.F.R. �1614.604(c) for extending the filing period or proving that he
timely filed his formal complaint. Accordingly, the agency's decision
to dismiss appellant's complaint is AFFIRMED.
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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
May 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations