Robert L. Davis, Jr., Appellant,v.Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01971447 (E.E.O.C. Sep. 9, 1999)

01971447

09-09-1999

Robert L. Davis, Jr., Appellant, v. Togo D. West, Jr., Secretary, Department of Veteran's Affairs, Agency.


Robert L. Davis, Jr., )

Appellant, )

) Appeal No. 01971447

v. ) Agency No. 93-2635R

) EEOC No. 340-94-3155X

Togo D. West, Jr., )

Secretary, )

Department of Veteran's Affairs, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision

of the agency concerning his complaint of unlawful employment

discrimination. The appeal was postmarked December 2, 1996.

By regulation, appeals to the Commission must be filed within thirty

(30) calendar days after an appellant receives notice of the final agency

decision. Appeals are deemed filed on the date received by the Commission,

unless postmarked earlier. 29 C.F.R. �1614.402(a).

In this case, the record indicates that appellant's then attorney

received the final agency decision on March 14, 1996, and that the

decision informed his attorney of where to file an appeal and the time

limits on his right to appeal. Appellant filed his appeal on December 2,

1996, which was over seven (7) months beyond the thirty-day time limit

set by the regulation.

As reason for this delay, appellant states on appeal that between March

and July of 1996, he suffered a series of hardships, including the death

of his brother and son, as well as a fire to the second floor of his home.

Furthermore, he received a letter dated April 11, 1996, from his then

attorney stating that he could no longer represent appellant in his

EEO matter. On appeal, appellant submits documentation of the events

described above.

Although the Commission's regulations governing computation of time limits

allow for waiver and/or equitable tolling, 29 C.F.R. �1614.604(c), there

is no indication that appellant was incapacitated to the point of being

unable to file his notice of appeal in a timely manner. See Weinberger

v. Department of the Army, EEOC Request No. 05920040 (February 21, 1992).

Furthermore, although we are sympathetic with appellant, he has failed

to show, with any specificity, why the events in question prevented him

from timely filing his appeal. Accordingly, the appeal is DISMISSED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

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

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 the

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 (S0993)

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 the 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 the 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 the 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. 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 (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:

September 9, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations