0120070507
08-14-2008
Jesse D. Hudson, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Jesse D. Hudson,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120070507
Agency No. 200105082005100551
Hearing No. 410200600007X
DISMISSAL OF APPEAL
By Notice of Appeal postmarked October 31, 2006, complainant filed an
appeal with this Commission from the August 11, 2006, final action (FA)
concerning his claim of discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The agency's final action adopted the decision of the EEOC
Administrative Judge (AJ) following a hearing, finding that the agency
did not discriminate against complainant.
In his Notice of Appeal, complainant, through counsel, stated that he
received the agency's final action on September 4, 2006. The record also
contains a return receipt card with a receipt date of September 27, 2006.
A review of the agency's decision shows that the agency properly advised
complainant that he had thirty (30) calendar days after receipt of
its final action to file his appeal with the Commission. Therefore,
in order to be considered timely, complainant had to file his appeal
no later than October 4, 2006, if he received the FA on September 4,
2006, or no later than October 27, 2006, if received it on September
27, 2006. Complainant has not offered any explanation or justification
for an extension of the applicable time limit for filing his appeal.
Accordingly, complainant's October 31, 2006 appeal is dismissed.1 See
29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (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 (Z0408)
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
__08/14/2008________________
Date
1 If complainant's Notice of Appeal had been timely filed and assuming,
arguendo, complainant established a prima facie case of discrimination,
our review of the record indicates that the AJ's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance of
the evidence, is supported by the record.
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0120070507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120070507