01974422
05-12-1999
Robert C. Nutter, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert C. Nutter v. United States Postal Service
01974422
May 12, 1999
Robert C. Nutter, )
Appellant, )
)
v. ) Appeal No. 01974422
) Agency Nos. 4C-442-1094-95
William J. Henderson, ) 4C-442-1100-95
Postmaster General, ) 4C-442-1104-95
United States Postal Service, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
The Commission finds appellant's appeal of the agency's March 12,
1997 final decision (FAD) to be untimely for the reasons which follow.
We find that appellant received the FAD on March 17, 1997, according to
the certified mail return receipt (the "green card"). Appellant also has
indicated, on a May 13, 1997 request for an extension to provide a brief
in support of his appeal, as well as on his EEOC Notice of Appeal/Petition
Form 573 facsimile ("fax"), that he received the FAD on March 17, 1997.
Therefore, to be timely, appellant's appeal had to have been postmarked
or delivered in person to the Commission within 30 days of his receipt
of the FAD, i.e., April 16, 1997, Wednesday, a regular business day.
See 29 C.F.R. ��1614.402 and .604.
We further find that the FAD gave appellant appropriate appeal rights,
including the applicable time limitation for filing his appeal,
the Commission's address, and the method by which the appeal could
be communicated. However, appellant's appeal, as indicated by the
fax date across the top of the document, was May 13, 1997, although
it appears appellant signed his appeal on April 14, 1997. We find no
persuasive evidence to support appellant's contentions that he faxed to
the Commission's Office of Federal Operations (OFO), on March 31, 1997,
a Freedom of Information Act (FOIA) request in connection with his appeal;
or faxed the appeal itself to OFO on April 14, 1997. We find, in fact,
that a letter by appellant to an unnamed OFO Compliance Officer, and
appellant's EEOC Form 573, both documents dated April 14, 1997, each
carried a fax date of May 13, 1997. Therefore, we find appellant's
appeal to be untimely filed and without such justification that an
extension of the applicable time limits would be warranted. See 29
C.F.R. �1614.403(c). Accordingly, pursuant to 29 C.F.R. �1614.403(c),
appellant's appeal is hereby 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. �l6l4.604(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 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. 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:
May 12, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations