0120092674
09-17-2009
Cha Cha B. Gillett, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Cha Cha B. Gillett,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120092674
Agency No. ARCEPORT08DEC04986
DISMISSAL OF APPEAL
By Notice of Appeal received June 17, 2009, complainant filed an appeal
with this Commission from the March 18, 2009 final agency decision (FAD)
concerning her EEO complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
A copy of the certified mail return receipt card reveals that the
FAD was received at complainant's address of record on March 20,
2009. A review of the FAD reveals that the agency properly advised
complainant that she had thirty (30) calendar days after receipt of
its final decision to file her appeal with the Commission. Therefore,
in order to be considered timely, complainant had to file her appeal no
later than April 20, 2009. However, complainant appears to have filed
her appeal, dated April 16, 2009, with the agency, not the Commission,
which forwarded it to the Commission on June 17, 2009. The Commission
has no record of receiving an earlier appeal from complainant and the
agency's decision gave complainant the appropriate Commission address for
filing her appeal. The appeal is addressed to the agency's EEO office,
and there is no notation that it was copied to the Commission.
Therefore, the only issue remaining is whether mistakenly filing the
appeal with the agency rather than the EEOC constitutes a valid filing.
The record establishes that the agency provided complainant with the
proper EEOC address for filing her appeal. The Commission has previously
held that when provided with the proper address, filing at the wrong
address does not constitute a proper filing. See Pacheco v. United
States Postal Service, EEOC Request No. 05930700 (September 10, 1993)
(appeal untimely when sent to wrong address despite receipt of proper
instructions); Meggitt v. United States Postal Service, EEOC Appeal
No. 01A40408 (February 3, 2004)(above principle applied to a formal
complaint that was untimely filed). On appeal, complainant has not
offered any justification for an extension of the applicable time limit
for filing her appeal.
Accordingly, complainant's June 17, 2009 appeal is hereby dismissed.
See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 17, 2009
__________________
Date
2
0120092674
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092674