01974952
10-20-1998
Ancil F. Bennett, Appellant, v. F.Whitten Peters, Secretary, Department of the Air Force, Agency.
Ancil F. Bennett v. Department of the Air Force
01974952
October 20, 1998
Ancil F. Bennett, )
Appellant, )
)
v. ) Appeal No. 01974952
) Agency No. 9V1M96111
F.Whitten Peters, )
Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated May 13, 1997, which the agency issued pursuant to EEOC
Regulation 29 C.F.R. �1614.107(b). The Commission accepts the appellant's
appeal in accordance with EEOC Order No. 960, as amended.
The agency dismissed the appellant's complaint for untimely filing.
The record demonstrates that the appellant received a notice of final
interview on March 26, 1996. The notice informed the appellant that he
could file a formal EEO complaint within 15 calendar days of his receipt
of the notice. The appellant filed a formal complaint, dated April 2,
1996, in an envelope which was postmarked April 15, 1996. Accordingly,
the Commission finds that the appellant's complaint was untimely filed
more than 15 calendar days after his receipt of the notice.
On appeal, the appellant points out that the agency overlooked the
untimeliness of the appellant's formal complaint for over one year in
that it failed to include the untimeliness of the appellant's complaint
in its prior dismissal decision, dated May 9, 1996. The prior dismissal,
based on the appellant's untimely EEO counselor contact, was reversed
by a prior decision issued by this Commission. Bennett v. Department
of the Air Force, EEOC Appeal No. 01964907 (March 24, 1997).
The Commission agrees with the appellant that it would have been
preferable if the agency had included all existing grounds for dismissal
in its initial dismissal decision. Inclusion of the additional
ground for dismissal would have been consistent with the Commission's
instructions to dismiss untimely filed formal complaints expeditiously.
See EEO Management Directive 110 (October 22, 1992), Chapter 4, Section
III.A.2. at 4-4. It also would have eliminated unnecessary work by
the appellant's representative, the agency, and the Commission and,
thereby, have conserved program resources as required by EEOC Regulation
29 C.F.R. �1614.102(a)(1). However, courts have held that an agency does
not automatically waive its right to dismiss a complaint for untimeliness
merely by accepting and investigating the tardy complaint. See, e.g.,
Oaxaca v. Roscoe, 641 F.2d 386, 390 (5th Cir. 1981).
The Commission agrees with the agency that the fact that the appellant
was taking strong anti-depressant medications does not prove that the
appellant was unable to timely file his formal complaint. Based on
the appellant's appeal statement, the Commission finds that much of the
appellant's time was spent on preparing the materials that were appended
to the appellant's complaint. However, this information did not need
to be included in the appellant's formal complaint and could have been
submitted to the agency during the investigative process.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's complaint.
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:
October 20, 1998
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations