Jimmy L. McCargar, Complainant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJul 20, 2000
01995811 (E.E.O.C. Jul. 20, 2000)

01995811

07-20-2000

Jimmy L. McCargar, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Jimmy L. McCargar v. Department of Justice

01995811

July 20, 2000

Jimmy L. McCargar, )

Complainant, )

)

v. ) Appeal No. 01995811

) Agency No. P968895

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

____________________________________)

DECISION

Complainant filed the instant appeal from the agency's final

decision dated June 15, 1999, dismissing his complaint pursuant to 64

Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred

to as EEOC Regulation 29 C.F.R. � 1614.107(a)(2)), due to the untimely

filing of the formal complaint.<1> Complainant alleges that he was

discriminated against on the basis of disability (hearing impairment)

when on February 6, 1996, he resigned in lieu of termination after being

told he should have never been hired at the United States Penitentiary,

Florence, Colorado.

The record discloses that complainant received the notice of right to

file a formal complaint on March 8, 1996. Although the notice indicated

that complainant had to file a formal complaint within fifteen (15)

calendar days of its receipt, complainant did not file his formal

complaint until April 10, 1996, which is beyond the limitation period.

On appeal complainant claims that the complaint was late due to a

misunderstanding between him and his attorney as to who was going to

file the formal complaint, and thus his time to file should be extended.

We note that complainant did not notify the agency that he had an

attorney until after filing his formal complaint. EEOC Regulation 29

C.F.R. � 1614.605(e) provides that the complainant shall at all times

be responsible for proceeding with the complaint whether or not he has

designated a representative. Therefore, we find that no persuasive

arguments or evidence have been presented on appeal to warrant an

extension of the time limit for filing the complaint. Accordingly, the

agency's final decision dismissing complainant's complaint is AFFIRMED.

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 20, 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

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. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.