01a02103
11-21-2000
Joseph G. Pone, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Joseph G. Pone v. Department of Veterans Affairs
01A02103
11-21-00
.
Joseph G. Pone,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02103
Agency Nos. 96-1206
97-0449
Hearing Nos. 140-96-8189X
140-97-8201X
DISMISSAL
On January 14, 2000, complainant filed an appeal with this Commission
from a final agency decision (FAD), dated October 21, 1999, finding no
discrimination.<1> By regulation, appeals to the Commission must be
filed within thirty (30) calendar days after a complainant receives the
final agency decision. Appeals are deemed filed on the date received by
the Commission, unless postmarked earlier. See 29 C.F.R. � 1614.604(b).
29 C.F.R. � 1614.605(d) provides, in pertinent part, that when a
complainant designates an attorney as representative, service of documents
and decisions on the complainant shall be made on the attorney and not
on the complainant, and time frames for receipt of materials by the
complainant shall be computed from the time of receipt by the attorney.
In this case, the record indicates that complainant's attorney
received the final agency decision on November 2, 1999.<2> Therefore,
complainant's appeal, on January 14, 2000, was beyond the thirty (30)
day time limit set by the Regulations. A review of the agency's final
decision indicates that complainant's attorney was informed about the
thirty (30) day time limitation period. On appeal, neither complainant,
nor his attorney offered an explanation regarding the untimely filing
of this appeal. Accordingly, the appeal is dismissed as untimely.
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
__11-21-00____________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record contains a copy of a certified mail return receipt that
indicates complainant's attorney received the final agency decision
at her office on November 2, 1999. Complainant received a copy of the
final decision on December 15, 1999.