0120092586
10-23-2009
Sylvester Smith, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Sylvester Smith,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120092586
Agency No. 200406132008104821
DISMISSAL OF APPEAL
By notice of appeal facsimiled on June 5, 2009, complainant, by and
through his attorney, filed an appeal with this Commission from the
March 5, 2009 final agency decision (FAD) concerning his EEO complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
The record contains a copy of the FAD with a date stamp receipt of the
law firm of complainant's attorney which reveals it was received by his
attorney on March 10, 2009. A review of the FAD reveals that the agency
properly advised complainant that he had thirty (30) calendar days after
receipt of its final decision to file his appeal with the Commission,
and gave the address for doing so. Therefore, in order to be considered
timely, complainant had to file his appeal no later than April 9, 2009.
29 C.F.R. � 1614.402(b).
The notice of appeal, which was filed via facsimile, was signed by
complainant's attorney and dated March 28, 2009. However, as indicated
by the facsimile notation printed at the top of each page, it was not
facsimiled to the Commission until June 5, 2009. In an August 20, 2009
reply to the agency's argument that complainant's appeal was untimely
filed, complainant's attorney submits no evidence that the appeal was
filed earlier with the Commission.1 It is possible that the notice
of appeal was served on the agency on March 28, but not filed with the
Commission until June 5. If this was the case, the only issue remaining
would be whether mistakenly filing the appeal with the agency rather
than the EEOC constituted a valid filing. The record establishes that
the agency's FAD provided complainant and his attorney with the proper
EEOC address for filing an appeal. The Commission has previously held
that when provided with the proper address, filing at the wrong address
does not constitute a proper filing. See Pacheco v. United States Postal
Service, EEOC Request No. 05930700 (September 10, 1993) (appeal untimely
when sent to wrong address despite receipt of proper instructions).
In sum, we conclude that complainant has not offered adequate
justification for an extension of the applicable time limit for filing
his appeal. Accordingly, complainant's June 5, 2009 appeal is hereby
dismissed. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 23, 2009
__________________
Date
1 We note, for example, that the EEOC's Office of Federal Operations sent
complainant and his attorney a letter on June 15, 2009, acknowledging the
filing of his appeal on June 5, 2009. There is no record of a response on
behalf of complainant indicating this stated filing date was incorrect.
??
??
??
??
2
0120092586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092586