James E. Wilkinsv.Department of the Army 01982243 12-08-00 .James E. Wilkins, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionDec 8, 2000
01982243 (E.E.O.C. Dec. 8, 2000)

01982243

12-08-2000

James E. Wilkins v. Department of the Army 01982243 12-08-00 .James E. Wilkins, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


James E. Wilkins v. Department of the Army

01982243

12-08-00

.James E. Wilkins,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01982243

Agency No. BODNF09710H0550

DECISION

Complainant 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.<1> The appeal was postmarked January 22, 1998.

EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the

Commission must be filed within 30 calendar days of the date on which

a complainant receives a dismissal, action, or decision. Appeals are

deemed filed on the date received by the Commission, unless postmarked

earlier. 29 C.F.R. �1614.604. In addition, an appeal is timely filed

if received or postmarked before the expiration of the applicable filing

period, or, in the absence of a legible postmark, if it is received by

mail within 5 days of the expiration of the applicable filing period.

29 C.F.R. �1614.604(b).

In the case at hand, complainant represented that he received the final

agency decision on December 17, 1997. The final agency decision properly

notified complainant that his appeal must be filed with the Commission

within 30 calendar days, and provided the correct address for filing

an appeal. Nevertheless, as stated, the appeal was not filed until

January 22, 1998, that is, more than 30 days after the receipt of the

final agency decision. Appellant failed to submit any justification,

pursuant to 29 C.F.R. �1614.604(c), for extending the filing period

beyond 30 days. Accordingly, appellant's appeal of the final agency

decision is untimely filed, and is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)

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

____12-08-00______________________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify

that the decision was mailed to claimant, claimant'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.