01970661
08-04-1999
Ronald Johnson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service (Allegheny/Mid-Atlantic Region),) Agency.
Ronald Johnson, )
Appellant, )
) Appeal No. 01970661
v. ) Agency No. 1-C-441-1139-95
)
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(Allegheny/Mid-Atlantic Region),)
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination.
The appeal was postmarked October 30, 1996. By regulation, appeals to
the Commission must be filed within thirty (30) calendar days after an
appellant receives notice of the final agency decision. 29 C.F.R. �
1614.402(a). Appeals are deemed filed on the date received by the
Commission, unless postmarked earlier. 29 C.F.R. � 1614.604(b).
In this case, the record reflects that appellant received the final agency
decision on September 23, 1996. Appellant's appeal on October 30, 1996
was, therefore, filed beyond the 30-day time limit set by the Regulations.
The record reveals that the final agency decision explicitly informed the
appellant of the time limits on his right to appeal. The Commission's
regulations governing the computation of time limits allow for waiver
and/or equitable tolling, 29 C.F.R. � 1614.604(c), however, appellant
has failed to submit justification to invoke waiver or equitable
tolling. Accordingly, the appeal is untimely and is DISMISSED.<1>
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 (3O) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (2O) 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 (2O) 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:
8/04/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1There is some
indication in the record that appellant attempted
to file by mail a notice of appeal within the
30-day period but mistakenly wrote an incomplete
address on the envelope containing the notice.
It appears that the mailing was ultimately
returned as undeliverable by the Postal Service.
This circumstance, if proven, would not justify the
invocation of the doctrines of waiver or equitable
tolling. The Commission has consistently held
that the mistaken filing of a notice of appeal with
the wrong agency does not toll the time limit for
filing an appeal. See Wiley v. United States Postal
Service, EEOC Request No. 05980828 (September 24,
1998); Henry v. Department of Veterans Affairs,
EEOC Request No. 05901116 (November 30, 1990).
The logic of those cases dictates the same result
where, as here, a complainant attempts to file a
notice of appeal by mail but inadvertently omits
essential information from the address he places
on the envelope.