01a61933
05-19-2006
Malden D. Smith, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Malden D. Smith v. Department of Defense
01A61933
May 19, 2006
.
Malden D. Smith,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 01A61933
Agency No. DFAS-IN-AS-04-017
Hearing No. 310-2004-00424X
DISMISSAL OF APPEAL
Complainant filed an appeal with this Commission from the agency's
final action dated July 29, 2005, concerning his complaint of unlawful
employment discrimination. EEOC Regulation 29 C.F.R. � 1614.402 provides
that appeals to the Commission must be filed within 30 calendar
days after a complainant receives notice of the agency's decision.
Complainant received the agency's decision on August 2, 2005. However,
the appeal was postmarked January 21, 2006, which was beyond the thirty
(30) day time limit set by the regulations. The record reveals that the
agency's decision explicitly informed complainant of the time limits on
his right to appeal.
On appeal, complainant's non-attorney representative contends that
although complainant received the agency's decision on August 2, 2005,
she did not receive it. EEOC Regulation 29 C.F.R. � 1614.605(d) provides
that when the complainant designates an attorney as representative,
service of all official correspondence shall be made on the attorney
and the complainant, but time frames for receipt of materials shall be
computed from the time of receipt by the attorney. Since complainant's
representative is not an attorney, the requisite time limit to file
complainant's appeal began from the date when complainant received the
agency's decision. Thus, the Commission finds that complainant fails
to provide adequate justification to invoke waiver or equitable tolling
for filing the appeal.
In addition, it appears that complainant's representative filed, via
facsimile, a request for an extension of time to file a statement or
brief in support of his appeal to the Commission which was granted.
This request was dated January 3, 2006. Even if this request was
considered as an appeal notice, it would still be untimely. Accordingly,
the appeal is DISMISSED as untimely pursuant to � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 19, 2006
__________________
Date