01A11807
05-01-2001
Gary R. Fritsch, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gary R. Fritsch v. United States Postal Service
01A11807
May 1, 2001
.
Gary R. Fritsch,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11807
Agency No. 1E-871-0017-99
DISMISSAL OF APPEAL
By Notice of Appeal postmarked January 13, 2001, complainant filed an
appeal with this Commission from the September 1, 2000 final agency
decision (FAD) dismissing his EEO complaint of unlawful employment
discrimination. The record reflects that the agency served copies of
the FAD on complainant and his attorney at their addresses of record on
the date the FAD was issued. Neither copy was returned to the agency.
Complainant acknowledges that he met with his attorney on November 30,
2001, at which time the attorney indicated to complainant that he did not
wish to continue on the case and recommended that complainant continue
pro se. Complainant urges the failure of the attorney to timely file an
appeal and subsequent withdrawal from the case as grounds for extension
of his time to file the appeal. Complainant also claims to have had
difficulty obtaining a copy of the final agency decision.
The Commission previously has held that the failure of a complainant's
attorney to file a notice of appeal on his or her behalf is not an
adequate justification, pursuant to 29 C.F.R. �1614.604(c), for extending
the filing period beyond thirty days. See Davis-Wren v. United States
Postal Service, EEOC Request No. 05940790 (March 30, 1995); Kennedy
v. U.S. Postal Service, EEOC Request No. 05950157 (August 10 1995); see
generally Curtis Baldwin v. Department of the Treasury, EEOC Request
No. 05890561 (August 25, 1989). In this case, even if the Commission
found complainant's argument persuasive and tolled the time limitation
until the date on which complainant's attorney withdrew from the case,
the thirtieth day after the day on which complainant's attorney withdrew
was Saturday, December 30, 2000. The next business day thereafter was
Tuesday, January 2, 2001. Complainant did not file his appeal until
nearly two weeks later. The Commission does not accept as adequate
justification for such further delay complainant's argument that he had
difficulty obtaining a copy of the FAD. The record reflects that the
agency provided complainant with a copy of the FAD on the same date as the
FAD was provided to complainant's attorney. Accordingly, complainant's
January 13, 2001 appeal is hereby DISMISSED. See 29 C.F.R. �� 1614.402
and 1614.604.
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
May 1, 2001
__________________
Date