01985509
10-20-1999
Marcia N. McRae Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Marcia N. McRae v. Department of Veterans Affairs
01985509
October 20, 1999
Marcia N. McRae )
)
Appellant, )
)
v. ) Appeal No. 01985509
) Agency No. 971521
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
)
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning her complaint of unlawful employment
discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. The final agency
decision was dated May 21, 1998 and the record indicates it was received
by the appellant on May 29, 1998. The appeal is postmarked July 3, 1998.
For the following reasons, we find that the appeal is not timely filed
and should be dismissed.
Regulation 29 C.F.R.�1614.402(a) requires that an appeal of a final
agency decision be filed within 30 days of the date appellant received
the agency's decision. We are required to dismiss appeals in accordance
with 29 C.F.R. �1614.403(c), that are not filed within 30 days of the
date of appellant's receipt.
A document shall be deemed timely if it is postmarked before the
expiration of the applicable filing period. Here, the postmark of July 3,
1998 is four days after the 30 day time period expired on June 29, 1998.
29 C.F.R.�1614.604(b). Appellant's appeal was filed outside of the time
period permitted and therefore, must be rejected.
CONCLUSION
Based on a review of the record, we find that the appeal must be dismissed
in accordance with 29 C.F.R. �1614.403(c) for failure to file the appeal
within 30 days of the date of appellant's receipt of the final agency
decision.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish
to file a civil action, you have the right to file such action in
an appropriate United States District Court. 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. In the alternative, you may file a civil action AFTER
ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date you filed your
complaint with the agency, or filed your appeal with the Commission.
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. 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 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:
10/20/99 ___________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations