Dexter Carter, Complainant,v.R.L. Brownlee, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 9, 2004
01A41242_r (E.E.O.C. Nov. 9, 2004)

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