01982848
03-02-1999
Steven Lewis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Steven Lewis v. United States Postal Service
01982848
March 2, 1999
Steven Lewis, )
Appellant, )
)
v. ) Appeal No. 01982848
) Agency No. 1-H-336-0005-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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 final agency decision was received by
appellant on February 21, 1998. The appeal was postmarked February 24,
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 for failure to timely file a formal complaint after receiving
notice of his right to do so.
BACKGROUND
Appellant contacted an EEO counselor on September 23, 1997, regarding
allegations of discrimination. Specifically, appellant alleged that he
was discriminated against when on September 8, 1997, he was instructed to
notify his supervisor when going to the bathroom. Informal efforts to
resolve appellant's concerns were unsuccessful. On November 13, 1997,
appellant received an agency document entitled "Notice of Right to File
Individual Complaint." Therein, the agency informed appellant that he
had fifteen (15) days from the date of receipt of the notice in which
to file a formal complaint.
Appellant filed a formal complaint on December 2, 1997, alleging that
he was the victim of unlawful employment discrimination on the basis of
race (black). On February 11, 1998, the agency issued a final decision
(FAD) dismissing appellant's complaint for failure to timely file a
written complaint after having received notice of his right to do so.
Specifically, the agency found that appellant received the "Notice of
Right to File Individual Complaint" on November 13, 1997. The agency
further determined that appellant's formal complaint, hand delivered
to the EEO office on December 2, 1997, was filed more than fifteen (15)
days after appellant had received said Notice.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.106(b) requires the filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of the receipt of the notice of right to
file, required by 29 C.F.R. �1614.105(d), (e), or (f).
EEOC Regulation 29 C.F.R. �1614.107(b) provides that the agency shall
dismiss a complaint or a portion thereof, that fails to comply with
the applicable time limits contained in ��1614.105, 1614.106, and
1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
The record herein indicates that on November 13, 1997, appellant
received an agency document entitled "Notice of Right to File Individual
Complaint" informing him of his right to file within fifteen (15) days of
his receipt of the Notice. Accordingly, appellant's complaint would be
timely filed on November 28, 1997. The record indicates, however, that
appellant's complaint was not received by the agency EEO office until
December 2, 1997. Appellant failed to timely file his formal complaint
pursuant to EEOC Regulations. On appeal, appellant asserts that because
his representative had been out of town for two weeks, he was unable,
without the assistance of his representative, to file his complaint in
a timely fashion. EEOC Regulation 29 C.F.R. �1614.605(e) provides that
the Complainant shall at all times be responsible for proceeding with
the complaint whether or not he or she has a designated representative.
See Carla Hunter v. United States Postal Service, EEOC Appeal No. 01970180
(September 11, 1997).
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint is
hereby 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:
Mar 2, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations