01A34634_r
12-22-2003
David H. Goss v. Department of the Air Force
01A34634
December 22, 2003
.
David H. Goss,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A34634
Agency No. 9R1M03040
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed due to untimely filing of the formal complaint.<1> In
his complaint, complainant alleged that he was subjected to discrimination
on the bases of disability (tendonitis, sleep disorder and job related
stress) and reprisal for prior EEO activity when:
On April 1, 2002, complainant became aware that he had been illegally
detailed in WR-ALC/LYPEFC (WR-ALC/MAIE) as a GS-3/5 Clerk Typist in
shipping and receiving.
On July 29, 2002, a co-worker hit complainant, which he reported to his
supervisor, but his supervisor did not call security police.
On July 30, 2002, complainant was illegally detailed in regards to his
disability limitations (he was made to lift more than 40 pounds).
On August 16, 2002, complainant was not approved to attend Fort Valley
State University for Electronics Engineering classes.
On October 9, 2002, complainant was not allowed to return to work since
he blacked out due to job related stress.
On October 22, 2002, complainant was given a Notice of Termination during
his probationary period effective November 22, 2002.
On December 12, 2002, complainant received confirmation that his
termination was effective December 13, 2002.
EEOC Regulation 29 C.F.R. � 1614.106(b) requires filing of a written
complaint with an appropriate agency official within fifteen (15)
calendar days after the date of receipt of the notice of the right to
file a formal complaint.
A copy of the certified mail return receipt reveals that a notice of
final interview was received at complainant's address of record on
February 20, 2003. The notice of final interview informed complainant
that he had fifteen (15) days from the date of its receipt in which to
file a formal complaint. Complainant did not file his formal complaint
until March 31, 2003, which is beyond the fifteen-day limitation period.
Complainant failed to present adequate justification for extending the
limitation period beyond fifteen days.
Accordingly, the agency's final decision is AFFIRMED.
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
December 22, 2003
__________________
Date
1Since we are affirming the agency's dismissal of complainant's complaint
on the ground of untimely filing the formal complaint, we will not
address the agency's alternative ground for dismissal, i.e.,untimely
EEO Counselor contact.