01A41242_r
11-09-2004
Dexter Carter, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Dexter Carter v. Department of the Army
01A41242
November 9, 2004
.
Dexter Carter,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A41242
Agency No. ARANNIS03APR0033
DISMISSAL OF APPEAL
The Commission finds that the appeal is untimely for the reasons which
follow.
Complainant alleged that he was discriminated against on the basis of race
(Black) when his Career Program (CP 33) package was purposely misrouted
and caused complainant to receive reduced ratings and not to be referred
for the position of Facilities Distribution Specialist, GS-11.
The agency issued a decision, dated October 14, 2003, dismissing the
complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to contact
an EEO Counselor in a timely manner. Complainant admitted receiving
the decision on October 18, 2003.
The record discloses that complainant sent a Notice of Appeal Petition
(Form 573), dated October 28, 2003 (with a brief) to the agency.
The record further discloses that the agency transmitted the appeal
and complainant's brief to the Commission by facsimile on December
16, 2003. The Commission never received any notice of appeal directly
from complainant.
The Commission has previously held that an appeal is untimely where
it is mailed to the wrong office, even if it would have been timely if
mailed directly to the Commission. See Henry v. Department of Veterans
Affairs, EEOC Request No. 05901116 (November 30, 1990). A review of the
agency's decision reveals that the agency properly advised complainant
that he had thirty calendar days after receipt of the decision to file his
appeal with the Commission. The agency's decision informed complainant
that he had to file his appeal with the Director of the EEOC's Office of
Federal Operations (OFO) and provided complainant with OFO's Washington,
D.C. mailing address. There is no indication that complainant sent any
notice of appeal directly to the Commission. Complainant's appeal was
received by the Commission (from the agency) beyond the required 30-day
time limit and therefore we find that the appeal was untimely filed.
Although the Commission's regulations governing the computation of the
time limits allow for waiver and equitable tolling, complainant has failed
to submit justification to waive or extend the time limitation period.
Accordingly, the appeal is DISMISSED as untimely filed pursuant to 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
November 9, 2004
__________________
Date