01983496
03-19-1999
Blaine L. Blank, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Blaine L. Blank v. Department of the Army
01983496
March 19, 1999
Blaine L. Blank, )
Appellant, )
)
v. ) Appeal No. 01983496
) Agency No. AHBBFO980610040
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The Commission finds that the agency's February 11, 1998 final decision
(FAD) dismissing appellant's formal EEO complaint on the grounds
that he failed to file his formal complaint of discrimination within
the 15-calendar day time frame provided by 29 C.F.R. �1614.105(d),
is proper.
The record shows that on December 5, 1997, the agency mailed the notice
of the right to file a formal EEO complaint to appellant's attorney.
The record also contains a written statement signed by an EEO Assistant,
in which she indicates that "on December 9, 1997, [she] received a phone
call from [appellant's attorney]. He stated that there was a certified
letter he was supposed to pick up but because of the line he wanted
to know if [she] could fax a copy of the letter that was sent. [She]
faxed it and asked him to date and acknowledge of receipt. {She] spoke
to him later that day and he had received the letter but never sent sign
copy back. As of this date, the certified mail card has not come back".
Appellant filed his formal complaint of discrimination on January 23,
1998.
The agency dismissed the complaint on the grounds of appellant's failure
to file his formal complaint within 15-calendar days of his receipt of the
notice of the right to file. It also appears that the agency dismissed
the complaint under section 1614.107(d) for electing to proceed under
the negotiated grievance procedure.
On appeal, appellant's attorney acknowledges that "although received via
facsimile, the notice of the right to file a discrimination complaint
... was never received other than by facsimile, and I do not consider
receipt by facsimile to constitute effective service of the subject
notice so as to trigger the running of the 15-day period for filing a
discrimination complaint ... in addition, submission of the discrimination
complaint was substantially delayed because it was virtually impossible
for [appellant] and me to communicate during his work hours".
The Commission has held that where there is an issue of timeliness,
the agency always bears the burden of obtaining sufficient information
to support a reasoned determination as to timeliness. Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992).
Concerning appellant's complaint, the agency has met its burden.
Appellant's complaint was not filed within 15 calendar days of his
attorney's receipt on December 9, 1997, of the notice of the right
to file a formal complaint. Accordingly, the dismissal is AFFIRMED.
We need not address the agency's alternative grounds for dismissal.
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 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:
March 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations