05A30457
03-20-2003
David Schmaltz, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
David Schmaltz v. Department of the Interior
05A30457
March 20, 2003
.
David Schmaltz,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Request No. 05A30457
Appeal No. 01A3933
Agency No. FNP-98-005
Hearing No. 320-98-8348X
DISMISSAL OF REQUEST FOR RECONSIDERATION
David Schmaltz (complainant) initiated a request to the Equal Employment
Opportunity Commission (EEOC or Commission) to reconsider the decision
in David Schmaltz v. Interior, EEOC Appeal No. 01A3933 (December 12,
2002). EEOC regulations provide that a complainant must submit a request
within 30 days of receipt of the decision. See 29 C.F.R. � 1614.405(a).
A request is timely filed if delivered in person or postmarked before the
expiration of the applicable filing period. 29 C.F.R. � 1614.604(b).
If complainant is represented by a lawyer, the time for filing is
calculated from the date of receipt by the lawyer. 29 C.F.R.�1614.402(b).
Complainant states in his request that he was represented by a lawyer
at the time he received notice of the Commission's previous decision.
Therefore, calculation of the time for filing his request is computed from
the date his lawyer received the decision. The record does not indicate
when his lawyer received the decision but complainant urges that we accept
his request even though it was untimely filed. He offers no compelling
reason why his request should be accepted late other than the fact that
there was a delay in his own receipt of the decision from his lawyer.
Under our regulations described above, complainant's request was due
to be filed on January 16, 2003, which is 30 days from the date of the
decision plus 5 days for mailing to his lawyer. Complainant's request was
postmarked February 7, 2003, and is therefore, untimely filed. For this
reason, the Commission dismisses complainant's request for failure to
file in a timely manner and his request for reconsideration is denied.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
March 20, 2003
__________________
Date