01986801
09-13-1999
Saturnina F. Giustino, Appellant, v. Daniel Glickman, Secretary, Department of Agriculture, Agency.
Saturnina F. Giustino v. Department of Agriculture
01986801
September 13, 1999
Saturnina F. Giustino, )
Appellant, )
) Appeal No. 01986801
v. ) Agency No. 870807
)
Daniel Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
Appellant initiated an appeal to the Equal Employment Opportunity
Commission (the Commission) from a final decision of the agency concerning
her claim for relief as a class member of the class certified in Byrd
v. Department of Agriculture, EEOC Hearing No. 250-90-8171X, according to
the terms of an October 10, 1993 settlement agreement between the class
representative and the agency. The appeal was postmarked September 12,
1998.
EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the
Commission must be filed within 30 calendar days of the date on which a
complainant 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. �1614.604. In addition, an appeal is timely filed if
delivered in person or postmarked before the expiration of the applicable
filing period, or, in the absence of a legible postmark, if it is received
by mail within 5 days of the expiration of the applicable filing period.
29 C.F.R. �1614.604(b).
In the case at hand, the record includes a copy of a postal return
receipt card, showing that the final agency decision was received at
appellant's address of record on May 20, 1997.<1> The final agency
decision properly notified appellant that her appeal must be filed
with the Commission within 30 calendar days, and provided the correct
address for filing an appeal. Nevertheless, as stated, the appeal was
not filed until September 12, 1998, that is, more than 30 days after
the receipt of the final agency decision. Appellant failed to submit
any justification, pursuant to 29 C.F.R. �1614.604(c), for extending
the filing period beyond 30 days. Accordingly, appellant's appeal of
the final agency decision is untimely filed, and is DISMISSED.
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. �l6l4.604(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 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. 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 13, 1999
DATE Carlton M. Hadden
Acting Director
Office of Federal Operations
1The Commission has previously held that receipt of a document by a member
of appellant's family of suitable age and discretion constitutes effective
receipt by appellant. See, e.g., Baunchand v. USPS, EEOC Request No.
05920389 (May 29, 1992).