Derek W. Burner v. United States Postal Service 01996794 September 14, 2000 . Derek W. Burner, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. Appeal No. 01996794 Agency No. 1-C-451-0106-99 DECISION Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint.<1> The record discloses that complainant's attorney received the notice of the right to file a formal complaint on May 17, 1999. The record discloses that despite the directions in the agency's notice to file the formal complaint with the agency's Cincinnati District EEO Office, complainant's attorney filed the complaint directly with the Commission on May 27, 1999. By letter dated June 9, 1999, the Commission informed complainant's attorney that the matter was not yet properly before the Commission. Thereafter, complainant filed a formal complaint with the agency on June 15, 1999, which is beyond the fifteen-day limitation period that commenced with the receipt of the notice of right to file a formal complaint on May 17, 1999. The Commission has emphasized the agency's responsibility to clearly and to properly apprize complainants of their rights under EEOC regulations. Hurley v. Department of Housing and Urban Development, EEOC Request No. 05920519 (August 20, 1992). The Commission determines that, in the instant case, the agency apprized complainant of the right to file a formal complaint within fifteen calendar days of being provided notice to file a complaint. Further, the agency's notice explicitly informed complainant of the address where the formal complaint was to be sent. On appeal, no persuasive arguments or evidence have been presented to warrant an extension of the time limit for filing the complaint. Accordingly, the agency's final decision dismissing the complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0800) 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). COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400) 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 14, 2000 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 29 C.F.R. Part 1614 in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov.