01983684
06-10-1999
John A. Forney, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Southeast/Southwest Region Agency.
John A. Forney v. United States Postal Service
01983684
June 10, 1999
John A. Forney, )
Appellant, )
)
v. ) Appeal No. 01983684
William J. Henderson, ) Agency No. 4-G-770-0293-98
Postmaster General, )
United States Postal Service, )
Southeast/Southwest Region )
Agency. )
______________________________)
DECISION
On April 10, 1998, appellants filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on April 2, 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 the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of race (black), color (black), sex (male), age (62), and retaliation
(prior EEO activity) when on December 3, 1997, he received a Letter of
Warning charging him with unsatisfactory performance.
The agency dismissed appellant's allegation pursuant to EEOC Regulation
29 C.F.R. � 1614.105(d), for failure to submit a written complaint to
an appropriate agency official within 15 days of receipt of the Notice
of Right to File Individual Complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(d), provides in relevant part that
an EEO complaint shall be filed within 15 days of receipt of the Notice
of Right to File Individual Complaint. Failure to comply with this time
limit is grounds for dismissal pursuant to 29 C.F.R. � 1614.107(b).
EEOC Regulation 29 C.F.R. � 1614.604(c) provides that this time limit
is subject to waiver, estoppel and equitable tolling.
EEOC Regulation 29 C.F.R. � 1614.605(d), provides that when a complainant
designates an attorney as representative, service of documents and
decisions on the complaint shall be made on the attorney, and time frames
for receipt of materials by the complainant shall be computed from the
time of receipt by the attorney. Further, 29 C.F.R. � 1614.605(e)
provides that the complainant shall at all times be responsible for
proceeding with the complaint whether or not he or she has designated
a representative.
Based on a review of the record, the Commission finds that appellant
failed to file his complaint in a timely manner. The record shows that on
January 27, 1998, appellant was advised of his obligation to file a formal
complaint within 15 days of that date. Appellant filed his complaint on
February 17, 1998, some six days late. Appellant contends that the time
to file his complaint should be tolled because on February 6, 1998,
he requested that all documentation be forwarded to his representative,
who is not an attorney. He maintains the agency denied his requested and
indicated that his representative would instead receive acknowledgment
that the forms had been mailed. As a result, appellant maintains that
it is the agency's fault that the complaint was late. Appellant also
alleges that he was recovering from a life threatening illness and
therefore his request was timely and appropriate.
The Commission finds that appellant has not provided sufficient evidence
to sustain his contention that the time should be tolled. First,
appellant is responsible for proceeding with the complaint whether
or not he has designated a representative. In the instant case, the
agency agreed to let the representative know that the forms had been
mailed. Since appellant does not maintain that his representative
did not know that the complaint was due, this argument fails. Second,
appellant mentions that he was recovering from a life threatening
illness but does not provide evidence of this statement. He does not
provide a doctor's statement or even indicate the nature of the illness.
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Davis v. United States Postal Service,
EEOC Request No. 05980475 (August 6, 1998). Based on the foregoing,
the Commission finds that appellant has failed to present sufficient
evidence or arguments that would justify the equitable tolling of the time
limit for filing a complaint. Therefore, the agency's final decision
dismissing appellant's complaint was proper pursuant to the provisions
of EEOC Regulation 29 C.F.R. � 1614.107(b).
CONCLUSION
Accordingly, the agency's decision dismissing the 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:
June 10, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations