01982243
12-08-2000
James E. Wilkins v. Department of the Army 01982243 12-08-00 .James E. Wilkins, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
James E. Wilkins v. Department of the Army
01982243
12-08-00
.James E. Wilkins,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01982243
Agency No. BODNF09710H0550
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal was postmarked January 22, 1998.
EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the
Commission must be filed within 30 calendar days of the date on which
a complainant receives a dismissal, action, or decision. Appeals are
deemed filed on the date received by the Commission, unless postmarked
earlier. 29 C.F.R. �1614.604. In addition, an appeal is timely filed
if received or postmarked before the expiration of the applicable filing
period, or, in the absence of a legible postmark, if it is received by
mail within 5 days of the expiration of the applicable filing period.
29 C.F.R. �1614.604(b).
In the case at hand, complainant represented that he received the final
agency decision on December 17, 1997. The final agency decision properly
notified complainant that his appeal must be filed with the Commission
within 30 calendar days, and provided the correct address for filing
an appeal. Nevertheless, as stated, the appeal was not filed until
January 22, 1998, that is, more than 30 days after the receipt of the
final agency decision. Appellant failed to submit any justification,
pursuant to 29 C.F.R. �1614.604(c), for extending the filing period
beyond 30 days. Accordingly, appellant's appeal of the final agency
decision is untimely filed, and is DISMISSED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (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
____12-08-00______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.