0520100018
11-09-2009
Joanna M. Darby, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Federal Emergency Management Agency), Agency.
Joanna M. Darby,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Federal Emergency Management Agency),
Agency.
Request No. 0520100018
Appeal No. 0120091554
Hearing No. 450200800116X
Agency No. HS10FEMA000021
DENIAL
Complainant requested reconsideration of the decision in Joanna M. Darby
v. Department of Homeland Security, EEOC Appeal No. 0120091554 (August
19, 2009). EEOC Regulations provide that the Commission may, in its
discretion, grant a request to reconsider any previous Commission decision
where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
By regulation, requests must be filed within thirty (30) calendar days
after the party receives the previous decision. 29 C.F.R. � 1614.405(b).
A document is timely if it is 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 five days of the expiration of the
applicable filing period. 29 C.F.R. � 1614.604(b).
It is noted that the Commission's previous decision included a
Certificate of Mailing indicating that, for purposes of timeliness,
the Commission will presume that the decision was received within five
(5) calendar days of the date on which it was mailed, August 19, 2009.
Complainant is presumed to have received the previous decision no later
than August 24, 2009.1 Thirty days from that date is September 23,
2009. As evidenced by the post mark date, complainant mailed the request
on October 2, 2009, which was beyond the 30-day limit set by regulation.
No reason was provided for the delay.
For the foregoing reasons, the complainant's request is denied.
The decision in EEOC Appeal No. 0120091554 remains the Commission's
decision. There is no further right of administrative appeal on the
decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 9, 2009
__________________
Date
1 In her request, complainant states she "did not receive the notice
until the end of August" but does not give a specific date or any
explanation. Even if complainant received the decision on August 31, 2009,
her request is untimely - it would have been due September 30, 2009.
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0520100018
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520100018