01985256
03-03-2000
James A. Fields, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
James A. Fields v. Department of Veterans Affairs
01985256
March 3, 2000
James A. Fields, )
Complainant, )
) Appeal No. 01985256
v. ) Agency No. 92-1107
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the agency concerning his complaint of unlawful employment
discrimination.<1> The appeal was postmarked June 16, 1998. By
regulation, appeals to the Commission must be filed within thirty (30)
calendar days after a complainant (or complainant's attorney) receives
notice of the final agency decision. 64 Fed. Reg. 37, 644, 37, 659
(1999)( to be codified as 29 C.F.R. � 1614.402(a)). Appeals are deemed
filed on the date received by the Commission, unless postmarked earlier.
64 Fed. Reg. 37, 644, 37, 661 (1999)( to be codified as 29 C.F.R. �
1614.604(b)).
In this case, the agency contends that this appeal should be dismissed as
untimely. The record shows that the final agency decision was received
at complainant's address on May 13, 1998. The certified mail return
receipt was signed not by complainant but by another individual who is
not identified in the record.
When a certified mail receipt has been signed by an unidentified
individual at the complainant's address on a date certain to indicate
delivery of a document, there is a presumption of constructive receipt of
the document by the complainant on that date. See Fontanella v. General
Services Administration, EEOC Request No. 05940131 (April 10, 1995).
An complainant may rebut this presumption by demonstrating that the
individual who signed for the document was not a family or household
member of suitable age or discretion to do so. See Id.; Baunchand
v. U.S. Postal Service, EEOC Request No. 05920389 (May 29, 1992). Here,
Complainant has made no attempt to rebut the presumption of constructive
receipt.<2>
Thus we conclude that the appeal was filed beyond the 30-day time limit.
The record reveals that the final agency decision explicitly informed
complainant of the time limits on his right to appeal. The Commission's
regulations governing the computation of time limits allow for waiver
and/or equitable tolling, 29 C.F.R. � 1614.604(c), however, complainant
has failed to submit sufficient evidence to justify the invocation of
waiver or equitable tolling. Accordingly, the appeal is untimely and
is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
3/3/00
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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:
3/3/00
Date
__________________________
Equal Employment Assistant
1 On 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2 We are satisfied that complainant received "adequate notice that [the]
presumption of constructive receipt is being relied upon to dismiss his
complaint as untimely." See Fontanella, supra. The agency's August 12,
1998 statement on appeal raised the question of the timeliness of the
appeal. The statement, which was signed by agency counsel, indicates
that a copy was sent to complainant.