01A42646_r
07-27-2004
Rosendo Ramirez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosendo Ramirez v. United States Postal Service
01A42646
July 27, 2004
.
Rosendo Ramirez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42646
Agency No. 1F-957-0053-03
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. In his complaint dated December
16, 2003, complainant alleged that he was subjected to discrimination
on the bases of race , sex, and reprisal for prior EEO activity when:
On June 26, 2003, complainant was not given a Nextel Radio to communicate
with other supervisors;
Person A, MDO, denied complainant's request for help;
Person A told complainant he was responsible for five employees calling
in sick; and
Employee B was assigned to work for complainant and Employee B worked
in an unsafe manner. When complainant reported this to Person A, Person
A did nothing to help the situation.
The regulation set forth at 29 C.F.R. � 1614.106, requires the filing of a
formal complaint within 15 days of receiving notice of the right to do so.
Under 29 C.F.R. � 1614.604(d), the time period for the filing of a formal
complaint is counted from the first day after the receipt of the notice
of the right to file a formal complaint and includes the last day of the
15-day period, unless it falls on a Saturday, Sunday, or Federal Holiday,
in which case the period is extended to include the next business day.
In the present case, the record indicates that the notice of right to
file a formal complaint was received by complainant on November 29, 2003,
making the final day of the 15-day period for filing Sunday, December 14,
2003. As the period ended on a Sunday, however, the period for filing was
extended to include the next business day, which was Monday, December
15, 2003. Although the notice indicated that complainant had to file
a formal complaint within fifteen (15) calendar days of its receipt,
there is no indication that complainant filed his formal complaint prior
to December 16, 2003, which is beyond the limitation period. On appeal,
complainant does not argue that he timely filed his complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
July 27, 2004
__________________
Date