0120100662
04-08-2010
Timothy L. Dayringer, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Timothy L. Dayringer,
Complainant,
v.
Robert M. Gates,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120100662
DISMISSAL OF APPEAL
On November 20, 2009, complainant filed a Notice of Appeal form with
the Commission.
Attached to complainant's appeal was a "Notice of Decision to Suspend,"
dated February 3, 2009, sustaining a proposed 14-day suspension.
Complainant does not explain the relevance of the suspension notice.
The complaint file submitted to the Commission by the agency indicates
complainant contacted an EEO counselor in November 2009 regarding a
reasonable accommodation request and when his character was "defamed"
by officials. However, the record also indicates that complainant
informed the agency, on or around December 23, 2009, that he was
withdrawing all matters in counseling. Thus, the agency closed the
matters because complainant indicated that he desired to drop "any
existing EEO complaints." There is no indication that any final agency
decision was issued. Nor is it clear as to why complainant filed the
suspension notice with the Commission.
Thus, to the extent complainant may be appealing his suspension with the
Commission, such action is inappropriate. Complainant must first raise
such matters with the agency by requesting EEO counseling. Given that
complainant withdrew the issues he previously raised in counseling and
it appears no final agency decision was issued, there is nothing for
the Commission to address on appeal.
Accordingly, complainant's appeal is hereby dismissed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 8, 2010
__________________
Date
2
0120100662
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100662