01976177
02-19-1999
Mary F. A. Seymour, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Mary F. A. Seymour v. Department of the Air Force
01976177
February 19, 1999
Mary F. A. Seymour, )
Appellant, )
)
v. ) Appeal No. 01976177
) Agency No. AL900970591
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
_________________________________)
DISMISSAL
Appellant filed the instant appeal from the agency's decision dated
May 23, 1997. The agency stated in the decision that it was dismissing
appellant's complaint pursuant to 29 C.F.R. �1614.107(g). The agency
found that on April 9, 1997 appellant received a notice of the right to
file a complaint on April 9, 1997, but that as of May 23, 1997 appellant
had not filed a formal complaint.
On appeal appellant argues that she requested an extension of 40 -45
days on April 29, 1996 (presumably appellant means 1997), but that she
never received a written reply to her request. Appellant argues that
she was told "by EEOC representative" that 30 days would be approved.
On appeal the agency argues that the complaint was properly dismissed
as untimely filed pursuant to 29 C.F.R. �1614.107(b). The agency found
that on April 29, 1997 appellant was granted a 45 day extension from the
date she received the Notice of Final Interview to file the complaint.
The agency found that May 23, 1997 was the 45th day following the Notice
of Final Interview. The agency argues that appellant had not filed a
complaint as of May 23, 1997. The agency further argues that on August
11, 1997 appellant's "complaint was heard by an arbitrator" and that "it
would be duplicative to have her concerns addressed in a second forum."
There is no indication in the record that appellant has filed a complaint.
Therefore, there was no complaint for the agency to dismiss under 29
C.F.R. �1614.107. Furthermore, if there is no complaint, then there can
be no right of appeal under �1614.401(a) (allowing appeal from dismissal
of a complaint). The Commission shall therefore dismiss the instant
appeal.
The instant dismissal, however, does not eliminate appellant's right to
file a complaint under �1614.106. If appellant files a complaint then
the agency should either issue a decision dismissing the complaint under
�1614.107 or process the complaint under �1614.108 et seq. The Commission
does not address in this decision whether any complaint filed after the
issuance of the May 23, 1997 decision is timely filed.
The instant appeal is DISMISSED.
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:
Feb 19, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations