David H. Goss, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionDec 22, 2003
01A34634_r (E.E.O.C. Dec. 22, 2003)

01A34634_r

12-22-2003

David H. Goss, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


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.