01982888
05-05-1999
Sylvia D. Hall, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sylvia D. Hall v. Department of Veterans Affairs
01982888
May 5, 1999
Sylvia D. Hall, )
Appellant, )
)
v. ) Appeal No. 01982888
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
)
DISMISSAL OF APPEAL
Appellant filed an appeal with the Commission from a final decision
(FAD) of the agency concerning her complaint of unlawful employment
discrimination. The appeal was postmarked March 2, 1998.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after appellant receives notice of the final agency
decision. 29 C.F.R. �1614.402(a). If the appellant is represented by an
attorney of record, the 30-day time period shall be calculated from the
receipt of the required document by the attorney. In all other instances,
the time within which to appeal shall be calculated from the receipt
of the required document by the appellant. 29 C.F.R. �1614.402(b).
Pursuant to 29 C.F.R. �1614.604(b), a document is deemed timely if
it is delivered in person or postmarked before the expiration of the
applicable filing period, or in the absence of a legible postmark,
if it is received by mail within five days of the expiration of the
applicable filing period. The Commission notes that the agency's final
decision properly notified appellant of the time, place, and procedure
for filing a timely appeal with the Commission.
In this case, the record including the certified mail return receipt,
reveals that appellant's attorney of record, received the FAD on October
24, 1997. Thereafter, appellant's representative filed a notice of appeal
with the Commission which has a Postal Service postmark of March 2, 1998.
In a letter dated March 2, 1998 and attached to appellant's appeal,
appellant's attorney indicates that appellant had previously filed the
appeal with this Commission on November 14, 1997. The correspondence
requests that the Commission waive the time limit requirements and accept
appellant's appeal as timely. Appeal Form 573 is signed by appellant
and dated November 14, 1997, however, appellant has produced no other
persuasive evidence to support her contention that the instant appeal was
filed earlier than March 2, 1998. The correspondence from appellant's
attorney does not indicate when and by what method appellant's appeal
was allegedly mailed to the Commission, nor does it offer any possible
reason why it was not received by this Commission before March 2, 1998.
Upon review, the Commission determines that appellant's appeal was not
filed within thirty (30) days as required by 29 C.F.R. �1614.402(a).
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 request 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. �1614.604(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. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
May 5, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations