0120110588
05-12-2011
Carl Fox, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Carl Fox,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Logistics Agency),
Agency.
Appeal No. 0120110588
Agency No. DLAB-08-0755
DISMISSAL OF APPEAL
Complainant filed an appeal with the Commission from the Agency’s
final decision, dated December 3, 2010, finding no discrimination. Upon
review, Complainant’s appeal is DISMISSED since the Commission lacks
jurisdiction to consider the appeal. 29 C.F.R. §1614.302(d)(1)(ii).
BACKGROUND
The record indicates that on March 28, 2008, Complainant, a former
Agency employee, filed his complaint alleging discrimination when:
he was subjected to a hostile work environment from January 7, 2008,
until his resignation on February 20, 2008; and on February 20, 2008,
he was forced to resign from his position as a Telecommunications
Specialist, GS-0391-05-01, before the completion of his probationary
period. Agency Decision, p.1. The Agency investigated the complaint
and issued its decision finding no discrimination. Complainant appeals
the Agency’s final decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.302(d)(1)(ii) requires that if
complainants are dissatisfied with the agency’s final decision on a
mixed case complaint, complainants may appeal the matter to the Merit
Systems Protection Board (MSPB) (not the EEOC) within 30 days of receipt
of the Agency’s final decision. Individuals who have received a final
decision from the MSPB on the appeal of a final decision on a mixed
case complaint may petition the EEOC to consider the MSPB’s decision.
Here, the Agency indicated that the instant complaint was a “mixed
case complaint” pursuant to 29 C.F.R. § 1614.302(d). In its
decision, the Agency clearly advised Complainant of his right to
appeal its final decision to the MSPB and not to the EEOC. Agency
Decision, p. 9. Complainant, however, filed his appeal with the EEOC.
Under the regulations, the Commission has no jurisdiction to consider
Complainant’s appeal.
CONCLUSION
Accordingly, Complainant’s appeal is DISMISSED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
5/12/11
__________________
Date
1 It is noted that the record indicates that Complainant previously also
requested a hearing before an EEOC Administrative Judge (AJ), but the
AJ dismissed the request on June 8, 2010. AJ’s Order of Dismissal.
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0120110588
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013