0120071079
05-08-2009
Estate of Eugene W. Hodge,1 Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury, Agency.
Estate of Eugene W. Hodge,1
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120071079
Hearing No. 541-2006-00005X
Agency No. 05-2403
DISMISSAL OF APPEAL
Complainant's estate filed an appeal with this Commission from the
agency's decision, dated October 26, 2006, concerning complainant's
complaint of unlawful employment discrimination. In his complaint,
complainant alleged discrimination based on disability and in reprisal
for prior EEO activity when his request for reasonable accommodation was
denied; he was terminated from his employment on April 1, 2005; and, he
was required to serve an extended probationary period. EEOC Regulation
29 C.F.R. �1614.402 provides that appeals to the Commission must be
filed within 30 calendar days after a complainant receives notice of
the agency's decision.
Complainant's estate, by the representative's admission, received the
agency's decision on November 9, 2006. The appeal was postmarked on
December 15, 2006, which was beyond the thirty-day time limit set by the
regulations. The record reveals that the agency's decision explicitly
informed complainant's estate of the time limits to file an appeal.
On appeal, complainant's estate does not submit any adequate justification
to invoke waiver or equitable tolling for filing the appeal.
Accordingly, the appeal is DISMISSED as untimely pursuant to �
1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
5/8/09
__________________
Date
1 The record indicates that complainant is deceased.
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2
0120071079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013