0120070001
09-17-2007
Pamela Velardi, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Pamela Velardi,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070001
Agency No. 200P06642005101125
DISMISSAL OF APPEAL
By Notice of Appeal postmarked September 27, 2006, complainant filed an
appeal with this Commission from the agency's final action1 concerning
her EEO complaint of unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
The attorney who filed the instant appeal2 and supporting brief on behalf
of complainant states that he was never sent a copy of the AJ's February
9, 2006 Decision Without A Hearing (nor a copy of the agency's Motion for
a Decision Without a Hearing). As proof, the attorney attaches to the
appeal a copy of a letter dated March 14, 2006, that he wrote to the AJ,
in which he asks the AJ to reconsider his decision and hold a hearing
in this case. In such letter, the attorney indicates that his client
(complainant) recently forwarded him a copy of the AJ's Decision, and
this was the first time he had seen it. Giving complainant the benefit
of the doubt, we will assume that complainant's attorney received the
AJ's decision on March 14, 2006 and that the AJ decision became the final
agency action on April 24, 2006. See 29 C.F.R. � 1614.109(i). Thus,
in order to be considered timely, complainant would have had to have
filed her appeal within 30 days, namely, no later than May 24, 2006.
Complainant has not offered adequate justification for an extension
of the applicable time limit for filing her appeal. Accordingly,
complainant's September 27, 2006 appeal is hereby dismissed. See 29
C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 17, 2007
__________________
Date
1 The agency indicates that it did not issue a final order within
40 days after receipt of the Administrative Judge's (AJ) February 9,
2006 decision. Therefore, the AJ's decision became the final action of
the agency. See 29 C.F.R. � 1614.109(i).
2 The attorney states that all parties and the AJ were aware that he
was counsel-of-record, while the agency denies that he ever formally
entered his appearance on behalf of complainant. The record indicates
that at some point complainant had another representative, to whom the
AJ sent a copy of his February 9, 2006 decision.
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0120070001
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036