01A33407_r
09-22-2003
William C. Park, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
William C. Park v. Department of Veterans Affairs
01A33407
September 22, 2003
.
William C. Park,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A33407
Agency No. 2000O-0459-2003100875
DECISION
Upon review, the Commission finds that complainant's formal complaint
was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due
to the untimely filing of the formal complaint. The record indicates
that complainant and his attorney received the notice of right to file
a formal complaint via Federal Express delivery on January 14, 2003.
Although the notice indicated that complainant had to file a formal
complaint within fifteen calendar days of its receipt, complainant's
formal complaint was officially postmarked, and thus filed, on January 31,
2003, which is beyond the limitation period. See 29 C.F.R. � 1614.604(b).
On appeal, complainant asserts that he used his attorney's electronic
postage machine after hours to privately postmark his complaint on
January 28, 2003, and mailed it that evening for pickup on January 29,
2003, the last day the complaint could be timely filed. Although the
envelope containing complainant's complaint has a metered date of January
28, 2003, in addition to the officially postmarked date of January 31,
2003, complainant has failed to adequately explain the purported delay in
affixing the official postmark date. Moreover, the Commission has found
that when there is a conflict between a private postage meter and a later
date affixed by the post office, the postal service date controls. See
Cavanaugh v. USPS, EEOC Request No. 05920738 (January 5, 1993).
Complainant also asserts on appeal that, as the official postmark was
superimposed over the January 28, 2003 metered date on the envelope,
the official January 31, 2003 postmark is illegible. EEOC Regulation 29
C.F.R. � 1614.604(b) states that in the absence of a legible postmark,
a document is considered timely if it is received within five days of
the expiration of the applicable filing period. The Commission first
determines that the postmark can be clearly read as dated January 31,
2003. Moreover, the record shows that the complaint was received by
the agency on February 5, 2003, or seven days past the January 29,
2003 expiration of the filing period. Therefore, even if the official
January 31, 2003 postmark on complainant's complaint were illegible,
complainant's complaint was untimely filed.
Accordingly, as no persuasive arguments or evidence have been presented
by complainant to warrant an extension of the time limit for filing the
complaint, 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
September 22, 2003
__________________
Date