0120103102
11-30-2010
Tony Brown, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Tony Brown,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103102
Agency No. 200J05392009102104
DISMISSAL OF APPEAL
By Notice of Appeal postmarked June 29, 2010, Complainant filed an appeal
with this Commission from the May 14, 2010 final Agency determination
(FAD) concerning his claim of breach of the parties' April 29, 2009,
Settlement Agreement.
Complainant stated in his brief in support of the instant appeal that he
received the FAD in late May, around May 27, 2010.1 A review of the FAD
reveals that the Agency properly advised Complainant that he had thirty
(30) calendar days after receipt of its FAD to file his appeal with the
Commission. Therefore, in order to be considered timely, Complainant
had to file his appeal no later than June 28, 2010.2 Complainant has
not offered adequate justification for an extension of the applicable
time limit for filing his appeal. Accordingly, Complainant's June 29,
2010 appeal is hereby dismissed. See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
November 30, 2010
__________________
Date
1 A review of Complainant's appeal form indicates that Complainant signed
and dated it on May 20, 2010. However, for purposes of analysis we shall
use the date Complainant stated in his brief as the date he received
the agency's determination.
2 We note that the 30th day would have been Saturday, June 26, 2010.
However the regulations provide that if the last day of the time period
lands on a Saturday, Sunday, or Federal holiday, the period shall be
extended to include the next business day. As such, for the appeal to
have been timely, Complainant had to have filed his appeal by Monday,
June 28, 2010. See 29 C.F.R. � 1614.604(d).
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0120103102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103102