01976006
06-09-1999
Lonnie Davis Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid Atlantic Region),) Agency.
Lonnie Davis Jr., )
Appellant, )
)
v. ) Appeal No. 01976006
) Agency No. 4D-200-1123-95
William J. Henderson, ) Hearing No. 120-96-5342X
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid Atlantic Region),)
Agency. )
________________________________)
DECISION
Appellant filed an appeal with the Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination.
The appeal was postmarked July 28, 1997.
EEOC Regulation 29 C.F.R. � 1614.402(a) provides that a final agency
decision on an EEO complaint may be appealed to the Commission within
thirty (30) days of the complainant's receipt of the final agency
decision. EEOC Regulation 29 C.F.R. � 1614.403(c) provides that if a
complainant does not file an appeal within the designated time limits,
the appeal will be untimely and shall be dismissed by the Commission.
EEOC Regulation 29 C.F.R. � 1614.403(a) provides that the appeal must
be filed with the Director, Office of Federal Operations, by mail,
by personal delivery, or by facsimile.
The record reflects that the Final Agency Decision (FAD) was dated
March 4, 1997. On appeal, appellant concedes that his appeal was
untimely, (i.e., beyond the thirty (30) day time limit set forth by
our Regulations). The record reveals that the final agency decision
explicitly informed appellant of the time limits on his right to appeal.
The Commission's regulations governing the computation of the time limits
allow for waiver and/or equitable tolling. 29 C.F.R. � 1614.604(c).
On appeal, appellant contends that between March 22, 1997, and June 15,
1997, he was attending the Academy of Military Sciences in Knoxville,
Tennessee, and that after completing his course work, he was commissioned
as a second lieutenant in the Air Force Reserve. Appellant asserts that
his attendance at this Academy prevented him from submitting a timely
appeal. The Commission finds, however, that appellant has failed to set
forth an adequate justification to invoke waiver or equitable tolling.
In reaching this conclusion, we note that appellant does not allege that
he was conducting military exercises or was otherwise engaged in the kind
of activities which would have made it impossible for him to communicate
with the Commission via facsimile, mail or personal delivery. To the
contrary, appellant stated that he completed his �coursework� on June
15, 1997. The fact that appellant was taking course work implies that
he was not engaging in military exercises of the kind that would have
restricted his access to mail, facsimile, or personal delivery service.
Even after completing such �coursework� on June 15, 1997, appellant
did not submit his notice of appeal until July 28, 1997. Accordingly,
the appeal is untimely and is 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.
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.F.R.).
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 9, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations