01986728
10-23-1998
Margaret E. Erving, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Margaret E. Erving v. Department of the Army
01986728
October 23, 1998
Margaret E. Erving, )
Appellant, )
) Appeal No. 01986728
v. ) Agency No. 93-010021
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DISMISSAL OF APPEAL
On August 17, 1998, appellant filed an appeal with this Commission from a
final decision of the agency dated October 25, 1995, in which the agency
issued her an award for attorney fees in the amount of $4,917.54.
By letter dated June 6, 1995, appellant's attorney submitted a claim
to the agency on her behalf for attorney fees totaling $8,215.24.
The agency reviewed the request and awarded appellant $4,917.54 for
attorney fees in a final agency decision (FAD) dated October 25, 1995.
Appellant's attorney received the FAD on November 6, 1995. The agency's
FAD informed appellant of her appeal rights.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after an appellant receives notice of the final agency
decision. Appeals are deemed filed on the date received by the Commission,
unless postmarked earlier. 29 C.F.R. �1614.402(a). If the 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 final
agency decision by the attorney. See 29 C.F.R. �1614.402(b).
According to the record, appellant's attorney received the final agency
decision on November 6, 1995. Applying the applicable regulation,
appellant's appeal is untimely because it was postmarked and filed August
17, 1998, approximately three years after our regulatory deadline.
The Commission's regulations governing the computation of the time limits
allow for waiver, estoppel and equitable tolling. 29 C.F.R. �1614.604(c).
The Commission notes that appellant requests that we waive the time
period for filing her appeal because she recently learned of the
remedies for the types of relief available to her. Appellant further
explains that she had problems communicating with her attorney, and
often received correspondence from him late. Appellant also stated that
due to "stress and taxation that aggravated a severe thyroid condition,
her concentration was impaired." Though we sympathize with appellant
we find her explanations unpersuasive. First, we note that appellant
does not allege that she did not receive a copy of the agency's final
decision or that her attorney mislead her regarding her appeal rights.
Moreover, the final agency decision clearly informed appellant of her
appeal rights and of the requirements for filing an appeal with the
Commission. We note that the requirement for filing an appeal is not an
onerous one and requires nothing more than a one sentence letter stating
that the complainant wishes to appeal. See Flynn v. Department of Army,
EEOC Appeal No. 01842242 (1986). Also, the Commission notes that the
documentation supporting appellant's alleged medical condition is dated
May 3, 1995, and falls short of explaining how her medical condition
prevented her from filing an appeal for three years. Based on these
findings, we conclude that appellant's arguments are not sufficient
for waiving our time limit. Accordingly, appellant's appeal is untimely
and is therefore 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 re-quest 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. � l6l4.604(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. 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 (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:
Oct 23, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations