01a52366
05-13-2005
Gary B. Adams, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense (Defense Contract Management Agency) Agency.
Gary B. Adams v. Defense Contract Management Agency
01A52366
05-13-05
.
Gary B. Adams,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense
(Defense Contract Management Agency)
Agency.
Appeal Nos. 01A52366,01A52367
Agency Nos. YS-04-1060A,YS-04-1060B
DISMISSAL OF APPEALS
Upon review, the Commission finds that complainant untimely appealed
the agency's final decision (FAD) in EEOC Appeal No. 01A52366, Agency
No. YS-04-1060A, pursuant to 29 C.F.R. � 1614.403(c). The Commission
affirms the agency's decision in 01A52367, Agency No. YS-04-1060B, since
complainant failed to state a claim for which relief may be granted,
pursuant to � 1614.107(a)(1).
01A52366
By Notice of Appeal postmarked December 9, 2004, complainant filed an
appeal of Agency No. YS-04-1060A with this Commission from the October
12, 2004 FAD dismissing his EEO complaint of unlawful employment
discrimination. A review of the FAD reveals that the agency properly
advised complainant that he had thirty (30) calendar days after receipt
of its final decision to file his appeal with the Commission. Therefore,
in order to be considered timely, complainant had to file his appeal
no later than November 11, 2004. Complainant has not offered adequate
justification for an extension of the applicable time limit for filing
his appeal. Accordingly, complainant's December 9, 2004 appeal is
hereby dismissed. See 29 C.F.R. � 1614.403(c).
01A52367
This case is an appeal of the agency's final decision in Agency
No. YS-04-1060B. Complainant alleges that he was retaliated against
in violation of the Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., when on October
19, 2004, he became aware that the agency failed to take disciplinary
actions against the Commander of the Defense Contract Management Agency
in Virginia, who provided false statements in an affidavit concerning
complainant's previous case, Agency No. XL-02-003. The agency issued
a FAD dismissing the complaint because the allegation was dealt with
in a previous case, Agency No. YS-03-0906, which ultimately settled.
The agency also dismissed the complaint for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994). Accordingly, the agency's
final decision dismissing complainant's complaint 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
____05-13-05______________
Date