01a03502
03-29-2001
Manuel T. Burciaga, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Manuel T. Burciaga v. United States Postal Service
01A03502
03-29-01
.
Manuel T. Burciaga,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03502
Agency No. 4E870004600
DECISION
INTRODUCTION
On April 7, 2000, Manuel T. Burciaga (complainant) initiated an appeal to
the Equal Employment Opportunity Commission (EEOC or Commission) from the
final decision of the United States Postal Service (agency), concerning
his complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964 (Title VII), 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. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2), due to the untimely filing of his formal complaint.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal complaint for failure to file his complaint within
fifteen (15) days of receiving the notice of right to file.
BACKGROUND
Complainant filed a formal complaint on February 3, 2000 in which
he alleged discrimination on the bases of race (Hispanic) and age
(D.O.B. 4/2/47) when he was issued a Notice of Removal for alleged
safety violations while other employees committing safety violations
were treated differently. In its final decision, the agency dismissed
the complaint, concluding that complainant failed to file his complaint
within 15 days of receiving the notice of right to file. The record
indicates that complainant received the notice of right to file a formal
complaint on January 18, 2000. The notice stated that complainant had to
file a formal complaint within 15 calendar days of its receipt, however,
the complainant did not file his formal complaint until February 3, 2000,
which is beyond the limitation period.<1> It is from that decision that
complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.106(b) requires the filing of a complaint
with an appropriate agency official within 15 calendar days after the
date of receipt of the notice of the right to file a formal complaint.
An agency shall dismiss a complaint or a portion of a complaint that
fails to comply with the 15-day time limit contained in 29 C.F.R. �
1614.107(a)(2), unless the agency extends the time limits in accordance
with 29 C.F.R. � 1614.604(c). Under 29 C.F.R. � 1614.604(c), this time
limit is subject to waiver, estoppel, and equitable tolling.
Complainant received the notice of right to file a formal complaint on
January 18, 2000, and filed his complaint on February 3, 2000, which
is beyond the limitations period. A review of the record reveals that
complainant designated a representative prior to filing his complaint.
Complainant's representative is the President of the National Association
of Letter Carriers, Branch 2905, and is not an attorney. On appeal,
complainant's representative explains that a misunderstanding existed
between himself and complainant when the notice of right to file was
received by complainant, resulting in complainant not filing his complaint
within the 15-day time period.<2> EEOC Regulation 29 C.F.R. �1614.605(e),
however, provides that complainant is responsible at all times for
proceeding with the complaint whether or not a representative has
been designated. The record reveals that complainant signed a return
receipt card for the right to file letter on January 18, 2000; therefore,
complainant was aware of his rights and responsible for proceeding
with his complaint. For the foregoing reasons, we find that agency
properly dismissed complainant's complaint for untimely filing of his
formal complaint.
CONCLUSION
Accordingly, the agency's decision dismissing the complaint as untimely
was proper and is hereby AFFIRMED.
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
___03-29-01_______________
Date
1The final agency decision cited January 26, 2000 as the filing date,
however, the record reveals that the appeal was filed on February 3,
2000.
2Complainant's representative does not state the exact nature of the
mis-communication, but rather explains that he discovered on January
20, 2000 that a relative was given a short period of time to live and
a death occurred in his family on January 28, 2000.