01983605
12-06-2000
James L. Spencer, Complainant, v. Bruce Babbitt, Secretary, Department of the Interior, Agency.
James L. Spencer v. Department of the Interior
01983605
December 6, 2000
.
James L. Spencer,
Complainant,
v.
Bruce Babbitt,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01983605
Agency No. FNP97058
DECISION
According to the record, complainant filed a formal EEO complaint
on April 10, 1997, but failed to specify a basis of discrimination.
By letter dated February 5, 1998, the agency notified complaint that in
order for his complaint to be accepted for investigation, complainant
must specify a basis of discrimination and clarify the claims he alleged
in his formal complaint. On February 18, 1998, complainant responded
to the agency's February 5, 1998 letter, but again did not indicate
a basis of discrimination. On March 17, 1998, the agency issued a
decision dismissing complainant's complaint comprised of 6 claims of
discrimination for failure to state a claim.<1>
On appeal, the Commission notes, that complainant, for the first time,
raises the basis of race (African-American). In addition, complainant's
appeal statement does not indicate that he previously raised the basis
of race (African-American) with the agency in relation to the instant
complaint.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. EEOC Regulation 29 C.F.R. � 1614.103(a) provides
for the acceptance of complaints from aggrieved employees or applicants
who allege that they have been discriminated against because of race,
color, religion, sex, national origin, age, disability or retaliation.
In the present case, complainant did not identify a basis under which
he was alleging discrimination. Moreover, we find that complainant's
attempt to raise the basis of race (African-American) on appeal, after
being given ample opportunity to do so prior to the dismissal of the
complaint, is too late under the circumstances of the instant matter.
Accordingly, the agency's decision dismissing complainant's complaint
for failure to state a claim was proper.<2>
For the reasons set forth herein, the Commission hereby AFFIRMS the
agency's decision dismissing complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
December 6, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In their March 17, 1998 decision, the agency also dismissed complainant's
complaint for failure to cooperate and claims 3, 5, and 6, for untimely
EEO Counselor contact.
2The Commission will not the address the agency's alternative grounds
for dismissal.