01984182
04-22-1999
Stephen P. Brennan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephen P. Brennan v. United States Postal Service
01984182
April 22, 1999
Stephen P. Brennan, )
Appellant, )
)
)
v. ) Appeal No. 01984182
) Agency No. 4-B-020-0117-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq., and �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The final
agency decision was dated May 1, 1998. The appeal was postmarked May 7,
1998. Accordingly, the appeal is timely (see, 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds that appellant did not file his formal complaint
within fifteen (15) days after the receipt of a Notice of Right to File
Discrimination Complaint.
BACKGROUND
The record indicates that on April 5, 1997, appellant initiated contact
with an EEO Counselor regarding his allegations of discrimination.
Informal efforts to resolve his concerns were unsuccessful. On April 1,
1998, appellant filed a formal complaint, alleging that he was the
victim of unlawful employment discrimination on the bases of mental
disability (major depressive disorder with psychotic features), age
(DOB: April 13, 1955), and reprisal (for prior EEO activity) when:
(1) On March 10, 1997, he was notified that he would no longer be provided
reasonable accommodation; and,
(2) As a result of the denied accommodation, he was forced to make
an application for disability retirement in April 1997, which became
effective August 1, 1997 (constructive discharge).
On May 1, 1998, the agency issued a final decision dismissing appellant's
complaint on the grounds of failure to file a complaint in a timely manner
in accordance with the applicable time limits contained in 29
C.F.R.�1614.106(b). The agency found, specifically, that appellant's
attorney received a Notice of Right to File a Mixed Case Complaint via
faxsimile transmittal on July 18, 1997; however, appellant's complaint was
not filed until April 1, 1998.
ANALYSIS AND FINDINGS
Based on a thorough review of the record, the Commission finds that the
agency properly dismissed appellant's complaint for untimely filing.
We find that proper notice was given to appellant's attorney under
Section 1614.105(d) when the notice of right to file was sent to the
attorney by facsimile transmission on July 18, 1997. Because appelant
did not file the complaint within 15 days of receipt of the notice,
the complaint was untimely.
CONCLUSION
Accordingly, the Commission finds that the final agency decision
dismissing appellant's complaint was proper and is AFFIRMED.
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. �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 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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
April 22, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations