0120090049
06-18-2010
Jeffrey L. Yarberry, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Animal and Plant Health Inspection Services), Agency.
Jeffrey L. Yarberry,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Animal and Plant Health Inspection Services),
Agency.
Appeal No. 0120090449
Agency No. APHIS-2007-01022
DISMISSAL OF APPEAL
Complainant filed an October 29, 2008 appeal with this Commission.
The record reflects that Complainant initiated contact with the Agency's
EEO Office on August 20, 2007 and alleged that, on July 20, 2007, he was
subjected to unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In an August 30, 2007, letter, the Agency informed Complainant that
an EEO Counselor would be contacting him soon to discuss his concerns.
In a September 7, 2007, e-mail to Complainant, the EEO Counselor stated
that she had received Complainant's September 5, 2007, election form for
traditional EEO counseling and would be contacting him in the near future.
Complainant states that, when he had not heard from the EEO Counselor by
November 2007, he made numerous attempts to contact her between November
2007 and January 2008, but was unable to proceed with his EEO case.
In November 2007, Complainant contacted his Congresswoman to request
her assistance. In a January 30, 2008, response to the Congresswoman's
letter of inquiry, the Agency asserted that the EEO Counselor sent
Complainant a Notice of Right to File on November 16, 20071, and that
Complainant did not thereafter file a formal complaint.
EEOC Regulation 29 C.F.R. � 1614.401(a) provides that, "a complainant
may appeal an agency's final action or dismissal of a complaint."
The Commission has no jurisdiction to review a complainant's case where
there has been no final agency decision. See Martin v. Dep't of the Army,
EEOC Request No. 05930284 (Aug. 12, 1993). Upon a review of the record,
it appears that Complainant has not filed a formal EEO complaint and the
Agency has not issued a final decision. Therefore, the Commission has
no jurisdiction to review Complainant's case at this time. Accordingly,
Complainant's appeal must be, and is, 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), at 9-18 (Nov. 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
June 18, 2010
Date
1 An unresolved issue exists regarding whether and on what date
Complainant received a Notice of Right to File from the Agency. We note
that where, as here, there is an issue of timeliness, "[a]n agency
always bears the burden of obtaining sufficient information to support
a reasoned determination as to timeliness." Guy, v. Dep't of Energy,
EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of
Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). Should Complainant
choose to file a formal complaint at this time, the burden would be on
the Agency to establish whether the complaint was untimely filed.
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0120090449
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120090449