0120114245
02-21-2012
Sean C. Spencer, Complainant, v. Mike Donley, Secretary, Department of the Air Force, Agency.
Sean C. Spencer,
Complainant,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120114245
Agency No. 9R1M11187
DECISION
Complainant filed an appeal with this Commission from the Agency's letter
dated July 29, 2011, closing his “informal complaint” of unlawful
employment discrimination filed on June 2, 2011, for failure to pursue.1
BACKGROUND
Complainant contacted an EEO counselor alleging he was discriminated
against because of his race (White), sex, age, and in reprisal for
prior EEO activity in connection with his Civilian Rating of Record.
The record indicates that on June 16, 2011, the Agency sent Complainant
a Notice of right to file a formal EEO complaint. The record contains
a copy of a certified mail return receipt establishing that the Notice
was received at Complainant’s address of record on June 21, 2011. By
letter dated July 29, 2011, the Agency informed Complainant that the
complaint was being closed for failure to pursue the matter.
The instant appeal followed without comment.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.106(b) requires, in
pertinent part, the filing of a formal EEO complaint within fifteen
(15) days of receiving the notice of the right to do so. The record
in this case discloses that Complainant received the Notice of right
to file a formal complaint on June 21, 2011. Although the Notice
indicated that Complainant had to file a formal complaint within fifteen
(15) calendar days of its receipt, Complainant did not file a formal
complaint. Complainant does not assert on appeal that he ever filed a
formal complaint or that there were circumstances which prevented him
from doing so.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
February 21, 2012
__________________
Date
1 For purposes of this decision, the Agency’s letter is regarded as a
final Agency decision. Because the letter gave no appeal rights to the
Commission, Complainant’s appeal is viewed as timely.
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0120114245
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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