Tracy D. Faircloth, Appellant,v.Louis Caldera, Secretary, Department of the Army, (National Guard Bureau), Agency.

Equal Employment Opportunity CommissionSep 22, 1999
01990219 (E.E.O.C. Sep. 22, 1999)

01990219

09-22-1999

Tracy D. Faircloth, Appellant, v. Louis Caldera, Secretary, Department of the Army, (National Guard Bureau), Agency.


Tracy D. Faircloth v. Department of the Army

01990219

September 22, 1999

Tracy D. Faircloth, )

Appellant, )

)

v. ) Appeal No. 01990219

) Agency No. T-0328-NC-A-01-98-O

Louis Caldera, )

Secretary, )

Department of the Army, )

(National Guard Bureau), )

Agency. )

______________________________)

DISMISSAL OF APPEAL

Appellant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination.

The postmark on the appeal was illegible, but the appeal was received

by the Commission on October 14, 1998.

By regulation, appeals to the Commission must be filed within thirty (30)

calendar days after an appellant receives notice of the final agency

decision. 29 C.F.R. �1614.402(a). If a complainant is represented

by an attorney of record, then the 30-day time period within which to

appeal shall be calculated from the receipt of the required document

by the attorney. 29 C.F.R. �1614.402(b). A document shall be deemed

timely if it is postmarked before the expiration of the applicable filing

period, or, in the absence of a legible postmark, if it is received by

mail within five days of the expiration of the applicable filing period.

29 C.F.R. �1614.604(b).

In this case, appellant's attorney admits that he received the

final agency decision on September 8, 1998. In order to be timely,

appellant's appeal must be filed by Thursday, October 8, 1998. Since

appellant's appeal was received by mail with an illegible postmark, it

needed to be received by the Commission by Tuesday, October 13, 1998.

The record reveals that the final agency decision explicitly informed the

appellant of the time limits on his right to appeal. The Commission's

regulations governing the computation of the time limits allow for

waiver and/or equitable tolling. 29 C.F.R. �1614.604(c). On appeal,

however, appellant has failed to submit justification to invoke waiver

or equitable tolling. Accordingly, the appeal is untimely 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. �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 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 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 22, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations