01986250_r
06-22-1999
John F. Thompson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John F. Thompson, )
Appellant, )
) Appeal No. 01986250
v. ) Agency No. 4-K-220-0056-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DISMISSAL OF APPEAL
The agency issued a final decision which dismissed one of three
allegations of appellant's complaint. A receipt for certified mail
reveals that appellant received the final agency decision on April
13, 1998. At the time, appellant was not represented by counsel.
Appellant apparently retained counsel on April 17, 1998.
The record contains a final agency decision. Within the body of the final
agency decision, appellant was informed in detail of his appeal rights to
the Commission regarding the dismissed allegation. Appellant was informed
that he had to file an appeal with the Commission within 30 calendar days
of his receipt of the final agency decision. The Commission's address
was provided. Appellant was also informed that if he failed to file
an appeal with the Commission within 30 calendar days, his untimeliness
could result in the dismissal of his appeal. The final agency decision
also informed appellant that the accepted issues would be investigated
and if he did not agree with the definition of the issues, he had to
provide a response to the agency within seven days. The final agency
decision also informed appellant in detail about the investigatory and
hearing processes regarding the accepted issues, timetables for those
processes and, also, what procedures he would have to follow if he were
dissatisfied with the agency's final decision on the accepted issues.
The record reveals that appellant's counsel submitted to the agency's
Office of EEO Complaints Processing, a document entitled "Complainant's
Response to Defined Issues," wherein appellant contended that the agency
had improperly dismissed allegation 1 of his complaint. The document
was date stamped as having been received by the EEO Office on April
20, 1998. In an April 30, 1998 letter to the Senior EEO Complaints
Processing Specialist, appellant's counsel stated, in relevant part, as
follows: "[w]ith respect to the dismissed issue, [appellant] desires
to appeal the dismissal of issue no. 1... Please consider this letter
[appellant's] notice of appeal as to that issue." In the April 30, 1998
letter, appellant also requested the appropriate forms so that he could
"pursue" his appeal. The record does not reveal when the April 30,
1998 letter was received by the EEO office.
The record also contains a May 7, 1998 letter from the Senior EEO
Complaints Processing Specialist to appellant's counsel, which the
record discloses was received by appellant's counsel on May 8, 1998.
The letter states that per "previous correspondence," a copy of the final
agency decision was enclosed and it informed counsel that the letter
did "not toll time limits." The May 7, 1998 letter also reflects that
copies thereof were also sent to appellant and the EEO investigator.
In a June 1, 1998 letter to the EEO investigator, counsel stated that
he was "concerned about the dismissal of issue #1 in [appellant's] case
which deals with the �relation back' theory. Counsel also referenced his
April 30, 1998 letter to the Senior EEO Complaints Processing Specialist.
He also stated therein that "[t]he notification of dismissal of issue
#1 indicates appellate rights to the EEOC but it does not give precise
instructions for the procedures to be used in order to pursue that appeal.
Those precise instructions are what I am seeking now."
Appellant's appeal was postmarked August 5, 1998. On appeal, appellant's
counsel asserts that his April 30, 1998 letter to the Senior EEO
Complaints Processing Specialist constitutes a valid appeal of the
dismissed allegation and that the agency had a duty to forward the April
30, 1998 letter to the Commission, if the agency considered the appeal
improperly filed. Appellant's counsel further asserts that he relied
on misleading statements from the EEO investigator regarding appellate
actions and that, therefore, the agency should be estopped from denying
the validity of the appeal. Counsel also states that on April 22, 1998,
he received a letter from the Senior EEO Complaints Processing Specialist
which ignored appellant's arguments<1> and which stated that "no appeal
has been taken" and, also, on May 4, 1998, he received a letter from the
EEO investigator which made no mention of the appeal.<2> Counsel also
states that on May 7, 1998, he received another letter from the Senior EEO
Complaints Processing Specialist which did not address the appeal issue
but which contained a copy of the final agency decision.<3> Appellant
further asserts that after concluding that written correspondence to the
agency was "fruitless," he telephoned the EEO investigator on May 22,
1998, regarding the appeal. Counsel asserts that he was informed by the
EEO investigator that the clock would not begin to run until completion
of the investigation and that upon completion of the investigation,
the dismissed allegation could be addressed at a hearing before an
EEOC Administrative Judge. Counsel further asserts that in his June 1,
1998 letter to the EEO investigator, he reiterated his concerns about
the appeal. Counsel also contends that he never received appropriate
appeal forms despite his requests to the agency.
In response to appellant's arguments on appeal, the agency contends that
appellant's appeal on August 5, 1998, occurred 114 days after appellant
received the final agency decision on April 13, 1998. The agency
further contends that counsel was provided with a copy of the final
agency decision on May 8, 1998, and that even if that date were used to
calculate the time for filing a timely appeal, the August 1998 appeal
was still untimely.
By regulation, appeals to the Commission must be filed within 30 calendar
days after an appellant receives notice of the final agency decision.
See 29 C.F.R. �1614.402(a). The time limits are subject to waiver,
estoppel and equitable tolling. See 29 C.F.R. �1614.604(c).
Upon review, we find that the appeal is untimely. The Commission finds
that appellant received the final agency decision on April 13, 1998,
and that in the final decision, the agency properly advised appellant
of his appeal rights and provided the Commission's address. Appellant,
therefore, had 30 days from April 13, 1998, to file an appeal with the
Commission. Appellant did not file his appeal until August 5, 1998.
Accordingly, his appeal is untimely and appellant has not provided
justification sufficient to extend the filing period.
The record reflects, and the Commission finds, that the April 30, 1998
letter from counsel evidenced appellant's attempt to file an appeal.
However, as a general rule, the Commission will dismiss an appeal as
untimely when it is mailed to the agency rather than to the Commission,
even if it would have been timely filed if it had been mailed directly
to the Commission. Henry v. Department of Veterans Affairs, EEOC Request
No. 05901116 (November 30, 1990)(mailed to the agency's Office of General
Counsel); Ramirez v. Department of Education, EEOC Request No. 05880901
(February 2, 1989) (mailed to the agency's EEO office). At times, the
Commission has exercised its discretion to extend the applicable filing
period for an appeal where: (1) there was no dispute that the appeal would
have been timely if sent to the correct destination; (2) the document
was sent to a Commission District Office; (3) the wrong office did not
forward the document promptly to the correct office, absent fault by
appellant; or (4) the agency was not prejudiced. Hyland v. Department
of Education, EEOC Request No. 05930037 (May 27, 1993). See, also,
Jones v. Department of Labor, EEOC Request No. 05950052 (January 19,
1996) (appeal found timely where agency did not act expeditiously to
advise appellant of her error or forward her appeal to the Commission);
Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,
1994)(appeal found timely where agency failed to expeditiously forward
the appeal to the Commission or to expeditiously inform appellant of
the filing error).
The Commission does not find that the present case qualifies as an
exception to our general rule. Appellant was provided appropriate
notice of his appeal rights which informed him at length when, where,
and how he was to file an appeal. In addition, on May 8, 1998, counsel
received a copy of the final agency decision from the EEO Complaints
Processing Specialist with the same detailed appeal rights previously
received by appellant. Counsel was also specifically put on notice in
the May 7, 1998 letter that time limits were not tolled. Counsel should
therefore have recognized that his attempt to file his appeal with
the agency through his April 30, 1998 letter was improper and taken
immediate action to file an appeal with the Commission. Based on the
May 7, 1998 letter and the appeal rights information contained in the
final agency decision, the Commission is not persuaded by counsel's
unsupported assertion that he was misled by the EEO investigator into
believing that his appeal was properly and timely filed when he talked
with the EEO investigator on May 22, 1998. The Commission also notes
that despite his having received the appeal rights and procedures and
despite the misgivings counsel asserts he had developed at least by late
May 1998, counsel still did not submit an appeal to the Commission until
August 1998. Counsel does not explain why if he believed the appeal was
properly filed with the EEO office by his letter of April 30, 1998, what
circumstances prompted him to file with the Commission in August 1998.
Finally, regarding appellant's contention on appeal that despite his
requests, the agency never provided him with EEOC Form 573 (Notice of
Appeal/Petition), the Commission has held that an appellant does not need
to have a Form 573 to file an appeal as long as appellant was advised of
appeal rights in the agency's final decision. Richardson v. Department of
the Army, EEOC Request No. 05960587 (April 22, 1996); Cole v. U.S. Postal
Service, EEOC Request No. 05950009 (May 25, 1995).
Accordingly, consistent with our discussion herein, the appeal is hereby
DISMISSED.
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. 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 (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 22, 1999
DATE Carlton M. Hadden, Acting Director
1Presumably, counsel is referring to his Response to Defined Issues.
2Counsel did not provide copies of the letters received by him on April
22, 1998 or May 4, 1998.
3The only evidence in the record reveals that the May 7, 1998 letter
was received, not on May 7, 1998, but on May 8, 1998.