01975896
09-20-1999
Mark A. Bate, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes/Midwest Region), Agency.
Mark A. Bate, )
Appellant, )
) Appeal No. 01975896
v. ) Agency No. 4J480100794
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Great Lakes/Midwest Region), )
Agency. )
)
DECISION
By letter and EEOC Form 573 dated July 24, 1997, appellant filed an appeal
with this Commission from a final decision of the agency. The appeal
contained no postmark, but was received by the Commission on August
1, 1997. In the final decision, dated February 12, 1997. the agency
made a finding of no discrimination on the bases of mental disability
(emotionally unstable) or reprisal (prior EEO activity) when appellant
was removed from his position as the Farmington, Michigan Postmaster on
August 26, 1994, and when appellant received a notice that he was being
held responsible for a shortage in the office on September 26, 1994.
A copy of the certified mail return receipt card supplied by the agency
reveals that someone at appellant's address who shares appellant's last
name, specifically, Shelia Bate, signed for the agency's final decision
on February 18, 1997. Appellant's EEOC Form 573 also indicates that
the final decision was received by appellant on this date. A review of
the agency's final decision illustrates that the agency properly advised
appellant that he had thirty (30) calendar days after receipt of its final
decision to file a notice of appeal with this Commission. Therefore,
in order to be considered timely, appellant had to file his appeal no
later than March 20, 1997. See 29 C.F.R. �� 1614.402 and 1614.604.
Appellant's appeal was received on August 1, 1997, and dated July
24, 1997. Under 29 C.F.R. � 1614.604(b), a document is deemed timely
if it delivered in person or postmarked before the expiration of the
applicable filing period, or, in the absence of a legible postmark,
it if is received by mail within five days of the expiration of the
applicable filing period. Even allowing for the possibility that the
appeal was delivered in person on July 24, 1997, or granting appellant
five days from the expiration of the applicable filing period, the appeal
was not filed until more than 4 months after the March 20, 1997 deadline.
On appeal, it appears as if appellant is attempting to justify his
untimeliness by noting that new evidence has been obtained and that
the case should therefore be re-opened. Appellant refers to evidence
and testimony which allegedly demonstrate that his superior's proffered
reasons for their actions are not worthy of belief. However, this does
not in any way explain or justify appellant's failure to comply with
the applicable time requirements. Therefore, appellant's appeal is
hereby DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
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 the
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 the 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 the 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 the 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:
Sept. 20, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations