01A25016_r
01-06-2003
Roy Cosbert, Complainant, v. Michael F. DiMario, Public Printer, United States Government Printing Office, Agency.
Roy Cosbert v. United States Government Printing Office
01A25016
January 6, 2003
.
Roy Cosbert,
Complainant,
v.
Michael F. DiMario,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 01A25016
Agency No. 02-12
DISMISSAL OF APPEAL
By Notice of Appeal postmarked August 23, 2002, complainant, through
his counsel, filed an appeal with this Commission from the July 8, 2002
final agency decision (FAD) dismissing his EEO complaint of unlawful
employment discrimination.
A copy of the certified mail return receipt card reveals that the FAD
was mailed to complainant's residence and the copy of postal receipt
provided by the agency contained complainant's signature with a date
stamped July 16, 2002 by the United States Postal Service. A review of
the FAD reveals that the agency properly advised complainant that he had
thirty (30) calendar days after receipt of its final decision to file
a timely appeal with the Commission. Further, the record reflects that
complainant retained counsel after he received the FAD. In his notice of
appeal, Form 573, complainant indicated that his representative received
the FAD on August 14, 2002. Moreover, the record contains complainant's
affidavit wherein complainant stated that it was his belief that the
agency's statement concerning his notice of right to appeal meant the
time period did not begin to run until his counsel received the decision.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after a complainant receives the FAD. See 29
C.F.R. � 1614.402(a). Furthermore, when a complainant is represented
by an attorney, this time limit is calculated from the date the FAD is
received by the complainant's attorney. See 29 C.F.R. � 1614.605(d).
In the instant matter, complainant retained counsel after the issuance of
the FAD; and his counsel received the FAD from him on August 14, 2002.
However, complainant's appeal was filed more than thirty days after
he received the FAD, at a time when he was unrepresented by counsel
(July 16, 2002). Complainant has not offered adequate justification
for an extension of the applicable time limit for filing his appeal.
Accordingly, complainant's August 23, 2002 appeal is hereby DISMISSED.
See 29 C.F.R. � 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
January 6, 2003
__________________
Date