05a00336
02-02-2001
Robert A. Larios, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert A. Larios v. United States Postal Service
05A00336
February 2, 2001
.
Robert A. Larios,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A00336
Appeal No. 01992873
Agency No. 4-G-780-0275-97
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Robert
A. Larios v. United States Postal Service, EEOC Appeal No. 01992873
(December 28, 1999).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The record indicates that the complainant's attorney received the
agency's final decision (FAD) on January 22, 1999. The FAD provided the
correct address of the Commission, the appropriate appeal form, and the
appropriate 30-day time frame for filing an appeal. The complainant's
appeal to the Commission was postmarked February 23, 1999. We note that
thirty calendar days from the date of receipt was February 21, 1999, which
was a Sunday. Therefore, the complainant had until Monday, February 22,
1999, to timely file his appeal. The previous decision found that the
complainant's appeal was untimely filed with the Commission and that
the complainant failed to submit justification for an extension of the
applicable time limit for filing his decision.
In his request for reconsideration and his additional submissions,
the complainant argues that his attorney dropped the appeal into a
mail chute on the 16th floor of his building on February 22, and he
does not know why the postmark is February 23, 1999. Alternatively,
the complainant argues that the appeal was received by the Commission
within five days after the February 22 time limit (excluding Saturday
and Sunday - February 27 and 28, 1999).
The agency opposes the complainant's request because the postmark has
long been used as evidence of mailing and to imply that the Postal
Service incorrectly applied a postmark date in this instance would cast
a perpetual question on the validity of the postmark as evidence in any
legal situation.
We note that it is the complainant's responsibility to insure the timely
filing of any appeal of a final agency decision. Piche v. Department
of the Navy, EEOC Request No. 05941019 (April 18, 1995) (citing Dossett
v. Tennessee Valley Authority, EEOC Request No. 05920847 (January 14,
1993). We also note that filing a Notice of Appeal, that is, filling
out a Form 573, is not an onerous endeavor and that a support brief
can be filed within 30 days of filing the Notice of Appeal. See 29
5 C.F.R. � 1614.403(d). We further note that the five-day exception
offered by the complainant in his request for reconsideration only
applies in situations where the postmark is not legible. Here, the
postmark was clear; therefore the five-day exception does not apply.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01992873 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
February 2, 2001
__________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.