01995737
11-30-2000
Janet A. Deneselya, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Janet A. Deneselya v. Department of Veterans Affairs
01995737
November 30, 2000
.
Janet A. Deneselya,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01995737
Agency No. 94-1857R
Hearing No. 170-95-8416X
DISMISSAL OF APPEAL
By Notice of Appeal postmarked July 7, 1999, complainant filed an appeal
with this Commission from the agency's April 15, 1999 decision finding
no breach of a settlement agreement.<1>
EEOC Regulation �1614.402(a) provides that where a complainant has
notified the EEO Director of alleged non-compliance with a settlement
agreement in accordance with 29 C.F.R. � 1614.504, the complainant my file
an appeal 35 days after service of the allegations of noncompliance, but
no later than thirty (30) days after receipt of an agency's determination.
A review of the agency's determination that it did not breach the
agreement between the parties 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.
In this case, complainant through her attorney acknowledges that the
final agency decision was received on April 19, 1999. Therefore,
in order to be considered timely, complainant had to file her appeal
no later than May 19, 1999. Complainant's appeal was postmarked July
7, 1999, which was beyond the thirty-day time limit described above.
The Commission's regulations governing the computation of time limits
allow for waiver and/or equitable tolling. 29 C.F.R. � 1614.604(c).
On appeal, complainant contends that her appeal was untimely because she
had to care for her critically ill sister, and was named administratrix of
her sister's estate after her death. However, the Commission determines
that complainant's proffered reason does not provide an adequate
justification for her failure to timely file during the entire 30-day
period. Accordingly, complainant's July 7, 1999 appeal is DISMISSED.
See 29 C.F.R. �� 1614.402 and 1614.604.
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
November 30, 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.