Victoria Smith, Complainant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 16, 2000
01994720 (E.E.O.C. Feb. 16, 2000)

01994720

02-16-2000

Victoria Smith, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Victoria Smith, )

Complainant, )

)

v. )

) Appeal No. 01994720

Togo D. West, Jr., ) ORM No. 99-1792

Secretary, )

Department of Veterans Affairs, )

Agency. )

______________________________)

DISMISSAL

On May 20, 1999, complainant's attorney filed an appeal with this

Commission from a final agency decision (FAD), dated April 13,

1999, dismissing her complaint for untimely counselor contact.<1> By

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

calendar days after a complainant receives the final agency decision.

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

unless postmarked earlier. See 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.604(b)).

In this case, the record indicates that complainant's attorney received

the final agency decision on April 19, 1999.<2> Complainant's appeal on

May 20, 1999 was, therefore, beyond the thirty (30) day time limit set

by the Regulations. A review of the agency's final decision indicates

that complainant's attorney was informed about the thirty (30) day

time limitation period. On appeal, neither complainant nor her attorney

offered an explanation regarding the untimely filing of her appeal.

64 Fed. Reg. 37,644, 37,661 (1999) (to be codified as 29 C.F.R. �

1614.605(d)) provides, in pertinent part, that when the complainant

designates an attorney as representative, service of documents and

decisions on the complainant shall be made on the attorney and not

on the complainant, and time frames for receipt of materials by the

complainant shall be computed from the time of receipt by the attorney.

The appeal is dismissed as untimely.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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:

02-16-00

____________________________

DATE Carlton M. Hadden, Acting Director

Office of

Federal

Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

______________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The record contains a copy of a certified mail return receipt that

indicates that the final agency decision was delivered to the office of

complainant's attorney on April 19, 1999.