01986629
05-19-2000
James F. Jenkins, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
James F. Jenkins v. Department of the Army
01986629
May 19, 2000
James F. Jenkins, )
Complainant, )
)
v. ) Appeal No. 01986629
) Agency No. AFBG9510F0680
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________________)
DISMISSAL OF APPEAL
Complainant filed an appeal with the Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination.
By regulation, an appeal to the Commission by a complainant must be filed
within 30 calendar days after the complainant receives notice of the
final agency decision. 64 Fed. Reg. 37,644, 37,659 (to be codified at 29
C.F.R. �1614.402(a)).<1> Appeals are deemed filed on the date received
by the Commission, unless postmarked earlier. 64 Fed. Reg. 37,644,
37,661 (to be codified at 29 C.F.R. �1614.604(b)).
In this case, the record reflects that complainant received the final
agency decision on August 3, 1998, as evidenced by a certified-mail
return-receipt and by complainant's acknowledgment in his notice of
appeal as to the date on which the final agency decision was received.
The thirtieth day after complainant received the final agency decision
was Wednesday, September 2, 1998. However, complainant's appeal is
legibly postmarked September 3, 1998, beyond the 30-day time limit set
by the Commission's regulations.
Pursuant to 29 C.F.R. �1614.604(c), the aforementioned time limitation may
be subject to extension through waiver, estoppel, or equitable tolling of
the limitation period. However, complainant has submitted no explanation
for his failure to file his appeal in a timely fashion; therefore, the
Commission finds no basis upon which to grant an extension of the time
for filing. Accordingly, the appeal is untimely and is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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:
May 19, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding
the present appeal. It is noted that the predecessor regulations also
required appeals to the Commission to be filed within 30 days of the
complainant's receipt of the final agency decision. The regulations,
as amended, may also be found at the Commission's website at www.eeoc.gov.