Marcia N. McRae Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01985509 (E.E.O.C. Oct. 20, 1999)

01985509

10-20-1999

Marcia N. McRae Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Marcia N. McRae v. Department of Veterans Affairs

01985509

October 20, 1999

Marcia N. McRae )

)

Appellant, )

)

v. ) Appeal No. 01985509

) Agency No. 971521

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, )

)

Agency. )

______________________________)

DECISION

Appellant filed an appeal with this Commission from a final agency

decision ("FAD") concerning her complaint of unlawful employment

discrimination in violation of the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The final agency

decision was dated May 21, 1998 and the record indicates it was received

by the appellant on May 29, 1998. The appeal is postmarked July 3, 1998.

For the following reasons, we find that the appeal is not timely filed

and should be dismissed.

Regulation 29 C.F.R.�1614.402(a) requires that an appeal of a final

agency decision be filed within 30 days of the date appellant received

the agency's decision. We are required to dismiss appeals in accordance

with 29 C.F.R. �1614.403(c), that are not filed within 30 days of the

date of appellant's receipt.

A document shall be deemed timely if it is postmarked before the

expiration of the applicable filing period. Here, the postmark of July 3,

1998 is four days after the 30 day time period expired on June 29, 1998.

29 C.F.R.�1614.604(b). Appellant's appeal was filed outside of the time

period permitted and therefore, must be rejected.

CONCLUSION

Based on a review of the record, we find that the appeal must be dismissed

in accordance with 29 C.F.R. �1614.403(c) for failure to file the appeal

within 30 days of the date of appellant's receipt of the final agency

decision.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish

to file a civil action, you have the right to file such 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. In the alternative, you may file a civil action AFTER

ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your

complaint with the agency, or filed your appeal with the Commission.

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. Filing a civil

action will terminate the administrative processing of your complaint.

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 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:

10/20/99 ___________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations