05971009
06-11-1999
John H. Johnston, Jr., Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
John H. Johnston, Jr. v. Department of Veterans Affairs
05971009
June 11, 1999
John H. Johnston, Jr., )
Appellant, )
)
v. ) Request No. 05971009
) Appeal No. 01956199
) Agency No. 94-1612
Togo D. West, Jr., ) Hearing No. 160-94-8105X
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DENIAL OF RECONSIDERATION
On August 22, 1997, John H. Johnston (appellant) filed a request to
reconsider the decision in Johnston v. Department of Veterans Affairs,
EEOC Appeal No. 01956199 (July 9, 1997). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a).
A request for reconsideration must be filed within 30 days of receipt of
the previous appellate decision. 29 C.F.R. �1614.407(b). A request is
timely filed if delivered in person or postmarked before the expiration
of the applicable filing period. 29 C.F.R. �1614.604(b). Where the
appellant is represented by an attorney, the date of receipt is computed
from the date of receipt by the attorney. 29 C.F.R. �1614.604(d).
A certified mail return receipt indicates that the previous decision
was received by appellant's attorney on July 18, 1997. The request was
sent by Federal Express and carried the date of August 22, 1997. In
the request for reconsideration, appellant's attorney states that
"the above-mentioned decision was received in this office on July 28,
1997 due to a change of address." Appellant's attorney also states that
he was out-of-state and that his office was closed from July 31 through
August 11, 1997. While there is evidence that appellant's attorney did
change addresses, the certified mail return receipt clearly indicates
that appellant's attorney did sign for and receive the previous decision
on July 18 rather than July 28, 1997. Absent other evidence to the
contrary, we find that appellant's request for reconsideration is
untimely. Appellant has failed to submit sufficient justification to
extend the time limits. The decision of the Commission in Appeal No.
01956199 remains the Commission's final decision.
There is no further right of administrative appeal from the decision of
the Commission on this request for reconsideration.
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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
June 11, 1999
DATE Frances M. Hart
Executive Officer
Executive Secretariat