01A32379_r
08-28-2003
Mark Abril, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark Abril v. United States Postal Service
01A32379
August 28, 2003
.
Mark Abril,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32379
Agency No. 4E-852-0142-02
DECISION
The Commission finds that the instant complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds that complainant
failed to timely file a complaint. The record contains a notice of
right to file complaint that was received by complainant's attorney on
January 21, 2003. The notice states that if a complaint is filed, it
must be filed within fifteen calendar days after receipt of the notice.
On February 10, 2002, complainant filed an EEO complaint wherein he
claimed that he was discriminated against on the basis of his race
(Hispanic) when: (1) on July 16, 2002, he was questioned by two agency
inspectors and placed in an off duty status and (2) on November 22,
2002, he received a notice of removal effective December 28, 2002.
The agency dismissed the complaint on the grounds that complainant failed
to file the complaint in a timely manner. The agency determined that
complainant's complaint was not received within the 15-day filing period.
The agency noted that complainant's attorney received the notice of
right to file complaint on January 21, 2003. According to the agency,
the formal complaint was not filed until February 10, 2003, five days
after the expiration of the fifteen day filing period.
Upon review of the record, we observe that the record contains the notice
of right to file complaint cited by the agency. The notice was received
by complainant's attorney on January 21, 2003. Complainant's attorney
argues on appeal that the notice was misdirected to an inexperienced
secretary who was not well versed in EEO Regulations. According to
complainant's attorney, his staff erroneously docketed a due date of
February 11, 2003, for the formal complaint. Complainant's attorney
argues that this mistake should be considered excusable neglect. We find
that the argument presented by complainant's attorney is not sufficient
to justify an extension of the 15-day filing period. We find that the
instant formal complaint was not filed until February 10, 2003, five
days after the expiration of the 15-day filing period. Accordingly,
the agency's dismissal of the complaint was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
August 28, 2003
__________________
Date