05a60082
11-10-2005
Daniel W. Lowery, Sr., Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Daniel W. Lowery, Sr. v. Department of the Army
05A60082
11-10-05
.
Daniel W. Lowery, Sr.,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Request No. 05A60082
Appeal No. 01A54049
Agency No. ARUSAR05FEB06769
DENIAL
Daniel W. Lowery, Sr. (complainant) timely requested reconsideration of
the decision in Daniel W. Lowery, Sr. v. Department of the Army, EEOC
Appeal No. 01A54049 (August 22, 2005). EEOC Regulations provide that
the Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant alleged that he was discriminated against on the bases of
his race (Caucasian), sex, and age (D.O.B. 03/11/46) when: (1) on August
25, 2003, he was not selected for the position of Staff Operations
and Training Specialist, GS-0201-11; (2) on April 4, 2004, he was not
selected for the position of Staff Operations and Training Specialist,
GS-11; and (3) on December 8, 2003, he was not selected for the position
of Human Resources Specialist, GS -11.
Complainant's complaint was dismissed by the agency pursuant to 29
C.F.R. 1614.107(a)(2), due to the untimely filing of the formal complaint.
The Commission affirmed the agency's dismissal because the evidence
showed that complainant received the notice of right to file a formal
complaint via certified mail and signed for it on February 28, 2005.
The notice of right to file a formal complaint explicitly provides that
complainant had to file a formal complaint within fifteen (15) calendar
days of its receipt. Complainant did not file his formal complaint
until March 22, 2005, which was beyond the limitation period.
In his request for reconsideration, complainant contends that he did
not receive the proper guidance from the agency regarding the process.
He maintains he believed that he only had to file the informal complaint
to start the process.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The Commission finds that the Notice of Right to File
a Formal Complaint of Discrimination clearly states that complainant
had 15 calendar days of receipt of the notice to file the complaint.
We find complainant failed to offer adequate justification to warrant
an extension of the time limit as the instructions to filing his formal
complaint were clearly explained in the Notice. Accordingly, the decision
in EEOC Appeal No. 01A54049 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
____11-10-05______________
Date