Zita M. Chatman, Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionJun 18, 1999
01983974 (E.E.O.C. Jun. 18, 1999)

01983974

06-18-1999

Zita M. Chatman, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Zita M. Chatman v. Department of the Army

01983974

June 18, 1999

Zita M. Chatman, )

Appellant, )

)

v. ) Appeal No. 01983974

) Agency No. BKEXFO9704H0080

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

______________________________)

DISMISSAL OF APPEAL

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her complaint of unlawful employment discrimination.

The appeal was postmarked April 15, 1998.

By regulation, appeals to the Commission must be filed within thirty

(30) calendar days after an appellant receives notice of the final

agency decision. Appeals are deemed filed on the date received by the

Commission, unless postmarked earlier. 29 C.F.R. �1614.402(a).

In this case, the record reflects that appellant received the final agency

decision on October 18, 1997. Therein, appellant was clearly informed of

the time limits on her right to appeal to the Commission. The record

indicates that on or around October 22, 1997, appellant previously

filed a notice of her appeal to the agency and not to the Commission.

The record contains a statement from the agency's EEO Manager, who

states that on October 22, 1997, appellant came to her office stating her

desire to appeal the agency's October 18, 1997 decision. According to

the Manager, she showed appellant her appeal rights contained in the

final agency decision, including the time limit for filing an appeal,

as well as that the appeal should be filed with the Commission.

The record indicates that appellant's appeal was not filed until April 15,

1998, when the agency, inquiring about the status of appellant's appeal,

sent a copy of the appeal notice to the Commission. In an appeal brief

filed on May 27, 1998, appellant proffered no explanation for failing

to file her appeal with the Commission. Thus, we find that appellant's

appeal on April 15, 1998, was, therefore, beyond the thirty (30) day time

limit set by the regulations. The Commission's regulations governing the

computation of time limits allow for waiver and/or equitable tolling.

29 C.F.R. �1614.604(c). On appeal, however, appellant has failed to

submit adequate justification to invoke waiver or equitable tolling.

Accordingly, we dismiss the appeal as untimely.

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:

June 18, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations