01982510
03-03-1999
Gladys M. Rodgriguez, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Gladys M. Rodgriguez v. Department of the Air Force
01982510
March 3, 1999
Gladys M. Rodgriguez, )
Appellant, )
)
v. ) Appeal No. 01982510
) Agency No. AL900980320
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DISMISSAL OF APPEAL
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination.
The appeal was postmarked February 11, 1998.
By regulation, appeals to the Commission must be filed within thirty
(30) calendar days after an appellant receives notice of the final
agency decision. Appeals are deemed filed on the date received by the
Commission, unless postmarked earlier. 29 C.F.R. �1614.402(a).
Appellant indicates that she received the final agency decision on
November 25, 1997. Appellant's appeal on February 11, 1998, was,
therefore, beyond the thirty (30) day time limit set by the Regulations.
The record reveals that the final agency decision explicitly informed
appellant of the time limits on her right to appeal to the Commission.
The Commission's regulations governing the computation of time limits
allow for waiver and/or equitable tolling. 29 C.F.R. �1614.604(c).
The record indicates that on February 11, 1998, the agency sent a copy
of appellant's appeal to the Commission and inquired as to the status of
her appeal. Purportedly, appellant sent a copy of her notice of appeal
dated December 23, 1997, to the agency. The Commission considered
appellant's appeal as filed on February 11, 1998, when the agency
submitted a copy of the appeal. Appellant contends that she filed
her appeal earlier than February 11, 1998; however, she provides no
evidence to support her contention. Thus, we find that appellant failed
to submit adequate justification to invoke waiver or equitable tolling.
Accordingly, we dismiss the appeal as untimely.
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. 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:
Mar 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations