James L. Spencer, Complainant,v.Bruce Babbitt, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity CommissionDec 6, 2000
01983605 (E.E.O.C. Dec. 6, 2000)

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.