01980314
03-30-1999
Dennis Anaya, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Dennis Anaya v. Department of Veterans Affairs
01980314
March 30, 1999
Dennis Anaya, )
Appellant, )
)
v. ) Appeal No. 01980314
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
)
DECISION
The Commission finds that the agency's September 8, 1997 decision
dismissing appellant's complaint on the basis of failure to respond
to the agency's written request pursuant to 29 C.F.R.�1614.107(g) was
proper and is AFFIRMED.
The record shows that on March 17, 1997, appellant filed a formal
complaint of discrimination alleging that he had been discriminated
against on the bases of race (none specified) and age (none specified)
when: "demotion notified 1996 that it would occur 1998; failure to
promote 1996; harassment 1995 to present; blackballed 1995 to present".
By letter dated April 2, 1997, the agency asked appellant to provide
additional information regarding his allegations of discrimination.
Appellant was specifically advised that he had to provide the requested
information within 15 calendar days of his receipt of the letter and that
failure to do so could result in the dismissal of his formal complaint.
The record shows a certified mail return receipt signed by someone at
appellant's address of record on April 8, 1997.
The agency issued a final decision on September 8, 1997, dismissing
the complaint for appellant's failure to comply with the April 2,
1997 written request. The agency also dismissed the issue of failure
to promote in 1996 as untimely counseled, and dismissed the issues of
demotion, harassment, and blackballed for not being counseled.
On appeal, appellant contends that he never received the letter because
it was sent to his previous address. We are not convinced. The record
shows that on April 8, 1997, someone at appellant's address of record
signed the return receipt for the April 2, 1997 written request.<1>
Appellant has not presented evidence sufficient to rebut the presumption
that the notice was received on April 8, 1997 at appellant's residence.
We also find that the record does not contain evidence sufficient
to enable the agency to process the complaint without the requested
information. Under these circumstances, the agency's final decision to
dismiss the complaint was proper and is hereby AFFIRMED.
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. �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 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:
March 30, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1 The Commission has held that the receipt of a document by a member of
a complainant's family at the complainant's home address constitutes
effective receipt by the complainant. Fischer v. USPS, EEOC Request
No. 05900389 (May 3, 1990).