01a54271
08-04-2005
Edward E. Turner, Complainant, v. Michael L. Dominguez, Acting Secretary, Department of the Air Force, Agency.
Edward E. Turner v. Department of the Air Force
01A54271
August 4, 2005
.
Edward E. Turner,
Complainant,
v.
Michael L. Dominguez,
Acting Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A54271
Agency No. WE1M01071
DISMISSAL OF APPEAL
On or about June 9, 2005, the agency brought to the Commission's
attention that the complainant filed a Notice of Appeal with the agency.
The Notice of Appeal was dated May 10, 2002, and was filed with
the agency. The appeal should have been filed with the Commission.
29 C.F.R. � 1614.403(a). It was filed from a final agency decision
(FAD) which found no discrimination on the complainant's complaint of
unlawful employment discrimination. An envelope in the file from the
complainant suggests that he filed his appeal with the agency's Secretary,
rather than the agency component recited in the FAD as the place to send
a copy of any appeal brief. The later agency component received a copy
of the Notice of Appeal on or about July 17, 2002.
A copy of the certified mail return receipt card reveals that the FAD was
received at complainant's address of record on March 12, 2002. A review
of the FAD reveals that the agency properly advised the complainant that
he had thirty (30) calendar days after receipt of its final decision to
file his appeal with the Commission, and it gave the proper Commission
address to do so. Therefore, in order to be considered timely, the
complainant had to file his appeal no later than April 11, 2002.
In response the complainant's appeal, the agency argues that it is
untimely filed. The complainant has not offered any justification
for an extension of the applicable time limit for filing his appeal.
Accordingly, even if the complainant filed his appeal with the Commission
on the date on his Notice of Appeal, his appeal would be untimely filed.
The complainant's appeal is hereby dismissed because it was untimely
filed See 29 C.F.R. � 1614.403(c).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must 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 timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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. 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 (Z1199)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 4, 2005
__________________
Date