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.