01A20055
04-30-2002
Joan Simmons, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Joan Simmons v. Department of the Treasury
01A20055
April 30, 2002
.
Joan Simmons,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A20055
Agency No. 941185R 941185
DISMISSAL OF APPEAL
By Notice of Appeal received by facsimile transmission on September 26,
2001, complainant filed an appeal with this Commission from the July
2, 2001 final agency decision (FAD) on her EEO complaint of unlawful
employment discrimination.
Complainant acknowledges having received the FAD on July 12, 2001.
A review of the FAD reveals that the agency properly advised complainant
that she had thirty (30) calendar days after receipt of its final
decision to file her appeal with the Commission. Therefore, in order
to be considered timely, complainant had to file her appeal no later
than August 13, 2001, the first business day after the expiration of
the 30-day period. Complainant has not offered adequate justification
for an extension of the applicable time limit for filing her appeal<1>.
Accordingly, complainant's September 26, 2001 appeal is hereby DISMISSED.
See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
April 30, 2002
__________________
Date
1It appears that complainant sent a copy of her notice of appeal to the
agency within the allotted 30-day appeal period. That fact alone is
insufficient to render complainant's appeal timely. Complainant has
failed to show that hers is the type of exceptional case where the
Commission will accept an otherwise untimely appeal. See, e.g., Jones
v. Department of Labor, EEOC Request No. 05950052 (January 19, 1996)
(appeal found timely where agency did not act expeditiously to advise
complainant of her error or forward her appeal to the Commission);
Orr v. Tennessee Valley Authority, EEOC Request No. 05930311 (March 11,
1994)(appeal found timely where agency failed to expeditiously forward
the appeal to the Commission or to expeditiously inform complainant of
the filing error).