Alvin Spencer v. Social Security Administration
01983855
May 13, 1999


Alvin Spencer,                     )
  Appellant,                       )
                                   )  
         v.                        ) Appeal No. 01983855
                                   ) Agency No. 98-0286-SSA
Kenneth S. Apfel,                  )    
Commissioner,                      )
Social Security Administration,    )
  Agency.                          )
___________________________________)


DECISION

Appellant filed the instant appeal from the agency's decision dated March
16, 1998 dismissing appellant's complaint on the grounds that appellant
failed to timely file the complaint.  The agency found that appellant
received the notice of his right to file a complaint on December 1, 1997,
but failed to file the complaint until January 29, 1998.  A complaint
must be filed within 15 days of receiving the notice of the right to
file a complaint.  29 C.F.R. §1614.106(b).

Appellant argues that he filed the complaint on January 29, 1998,
which was as soon as possible after he received the forms from his
non-attorney representative.  Appellant argues that his representative
had a seizure and a back injury on December 10, 1997 and that as soon
as the representative was able, the representative mailed the claims
package to appellant and asked appellant to mail in the complaint.
The Commission finds that appellant has not submitted adequate evidence to
equitably toll the deadline for filing the complaint under §1614.604(c).
Appellant has not submitted persuasive evidence showing that appellant's
representative was incapacitated from filing a complaint for any specified
period of time.  Furthermore, a complainant is at all times responsible
for proceeding with the complaint whether or not he has designated
a representative.  29 C.F.R. §1614.605(e).

The record does not include any evidence showing when appellant received
the notice of the right to file a complaint.  Without such evidence the
Commission can not determine if appellant timely filed the complaint.
The Commission shall remand the matter so that the agency may supplement
the record with evidence showing when appellant received the notice of
the right to file a complaint.

The agency's decision dismissing the complaint is VACATED and we REMAND
the complaint to the agency for further processing in accordance with
this decision and applicable regulations.

ORDER

The agency shall supplement the record with evidence showing when
appellant received the notice of the right to file a complaint. Thereafter
the agency shall determine whether appellant timely filed the complaint.
Within 30 days of the date this decision becomes final the agency
shall either issue a letter to appellant accepting the complaint for
investigation or issue a new decision dismissing the complaint.  A copy
of the agency's letter accepting the complaint or new decision dismissing
the complaint must be sent to the Compliance Officer referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C.  20036.  The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant.  If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order.  29 C.F.R. §1614.503 (a).  The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. §§ 1614.408, 1614.409, and 1614.503 (g).  Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action."  29 C.F.R. §§ 1614.408 and 1614.409.  A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. §2000e-16(c) (Supp. V 1993).  If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. §1614.410.

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. §l6l4.604(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 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:


May 13, 1999
    DATE                      Carlton M. Hadden, Acting Director
                              Office of Federal Operations