Jeanary Hinderman, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 9, 2000
01a01909 (E.E.O.C. Feb. 9, 2000)

01a01909

02-09-2000

Jeanary Hinderman, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Jeanary Hinderman, )

Complainant, )

)

v. ) Appeal No. 01A01909<1>

) Agency No. SAN98AFO246E

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DISMISSAL OF APPEAL

By Notice of Appeal postmarked July 17, 1999, complainant filed an

appeal with this Commission from the June 9, 1999 final agency decision

(FAD)finding that the agency was in compliance with a settlement agreement

entered into on July 17, 1998.<2>

A copy of the certified mail return receipt card reveals that the FAD was

received by complainant's attorney of record on June 11, 1999. 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

July 12, 1999.<3> Complainant has not offered adequate justification

for an extension of the applicable time limit for filing her appeal.

Accordingly, complainant's July 17, 1999 appeal is hereby DISMISSED.

See 64 Fed. Reg. 37,644, 37,659, 37, 661 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. �� 1614.402 and 1614.604).

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:

February 9, 2000

____________________________

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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant 1We note that complainant's appeal

was originally docketed as 01995873. Pursuant to correspondence from the

agency, EEOC Appeal No. 01995873 was administratively closed as involving

a partial dismissal. Subsequently, the agency notified the Commission

that it had been mistaken and that the present case did not involve

a partial dismissal, but rather a breach of settlement allegation.

Consequently, the Commission redocketed the present appeal under EEOC

Appeal No. 01A01909.

2On 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.

3Since the thirtieth day following the attorney's receipt fell on July

11, 1999, a Sunday, the applicable filing period was extended to the

next business day, Monday, July 12, 1999. See 29 C.F.R. � 1614.604(d).