01a00060
03-23-2001
Joe V. Sedillo, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Joe V. Sedillo v. Department of Agriculture
01A00060
03-23-01
.
Joe V. Sedillo,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A00060
Agency No. 980702
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq. In the Notice
of Appeal (EEOC Form 573), the complainant indicated that he received the
FAD on August 25, 1999. The Notice of Appeal is signed by complainant
and dated September 27, 1999. The issue is whether complainant timely
filed his appeal.
EEOC Regulation 29 C.F.R. � 1614.402(a) states that appeals described
in 29 C.F.R. � 1614.401(a) must be filed within thirty days of receipt
of the dismissal, final action or decision. EEOC Regulation 29 C.F.R. �
1614.402(b) states that if the complainant is represented by an attorney
of record, then the 30-day time period provided within which to appeal
shall be calculated from the receipt of the required document by the
attorney. EEOC Regulation 29 C.F.R. � 1614.604(d) states that the
first day counted shall be the day after the event from which the time
period begins to run and the last day of the period shall be included,
unless it falls on a Saturday, Sunday or Federal holiday, in which case
the period shall be extended to include the next business day.
A review of the FAD reveals that the agency properly advised complainant
that he had thirty (30) calendar days after receipt of its final decision
to file his appeal with the Commission. Therefore, in order to be
considered timely, complainant had to file his appeal no later than
September 24, 1999, pursuant to 29 C.F.R. � 1614.402(a) and 604(d).
Complainant's appeal was legibly postmarked September 27, 1999.
Consequently, using the postmark date as the official filing date,
the appeal is deemed untimely because it was filed more than 30 days
after receipt of the FAD. Complainant provided no justification for
an extension of the applicable time limit for filing his appeal.
Accordingly, complainant's September 27, 1999 appeal is hereby DISMISSED.
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
__03-23-01________________
Date