Donald R. Jackson, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01a45490 (E.E.O.C. Nov. 24, 2004)

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