01a45490
11-24-2004
Donald R. Jackson, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Donald R. Jackson v. Department of the Air Force
01A45490
11-24-04
.
Donald R. Jackson,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A45490
Agency No. 9V1M04288
DECISION
On August 10, 2004, Donald R. Jackson (complainant) filed an appeal from
the agency's final decision dated July 28, 2004, dismissing complainant's
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq., and the Age Discrimination in Employment Act of 1967, as amended,
29 U.S.C. � 621 et seq. The appeal is timely filed (see 29 C.F.R. �
1614.402(a)) and is accepted in accordance with 29 C.F.R. � 1614.405.
Complainant sought EEO counseling on April 26, 2004, following a notice of
suspension for five days. On May 25, 2004, the agency issued a Notice
of final interview, which complainant received on May 26, 2004, which
informed him that he should file his formal complaint within 15 days of
its receipt. The record shows that his formal complainant was sent to
the agency by his representative in an envelope postmarked on June 17,
2004, although it appears to have been stamped for postage on May 27,
2004. Further, although his formal complaint is dated May 27, 2004,
the agency's notations indicate that it was not received until June 18,
2004, and considered file on June 17, 2004. The agency dismissed his
complaint for untimely filing.
The Commission's regulations allow an agency to dismiss a formal complaint
that does not comply with the time limits in 29 C.F.R. � 1614.105(d).
See 29 C.F.R. � 1614.107(a)(2). Here, complainant should have filed
his formal complaint on or before June 10, 2004. Complainant has
not provided an explanation or justification for extending the time
limitations period. See 29 C.F.R. � 1614.604(c). We find, therefore,
that the agency properly dismissed complainant's complaint for untimely
filing. 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Accordingly, the agency's 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
____11-24-04______________
Date