0320110013
06-30-2011
William D. Spence, Petitioner, v. Mike Donley, Secretary, Department of the Air Force, Agency.
William D. Spence,
Petitioner,
v.
Mike Donley,
Secretary,
Department of the Air Force,
Agency.
Petition No. 0320110013
MSPB No. PH-0752-09-0588-I-1
DENIAL OF CONSIDERATION
On December 27, 2010, Petitioner filed a petition with the Equal
Employment Opportunity Commission asking for review of a final order
issued by the Merit Systems Protection Board (MSPB) concerning his claim
of discrimination in violation of Section 501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. § 791 et seq.
Petitioner alleged that the Agency discriminated against him on the basis
of disability when he was removed from his Airplane Flight Instructor
position at Dover Air Force Base in Delaware. A hearing was held and
thereafter an MSPB Administrative Judge issued an initial decision
finding no discrimination. Petitioner sought review by the full Board,
but his request was denied on November 19, 2010.
A review of the Board’s final order reveals that the MSPB properly
advised Petitioner of the following: “You should send your request to
EEOC no later than 30 calendar days after your receipt of this order.
If you have a representative in this case, and your representative
receives this order before you do, then you must file with EEOC no later
than 30 calendar days after receipt by your representative.” A copy of
the certified mail return receipt card reveals that the Board’s final
order was received by Petitioner’s attorney of record on November 23,
2010. When the petitioner designates an attorney as representative,
service of all official correspondence shall be made on the attorney
and the petitioner, but time frames for receipt of materials shall be
computed from the time of receipt by the attorney.
29 C.F.R. § 1614.605(d). Therefore, in order to be considered timely,
Petitioner had to file his petition for review no later than December 23,
2010. Petitioner, who filed the instant petition pro se, hand-delivered
his petition to the Commission on December 27, 2010. Petitioner has not
offered any justification for an extension of the applicable time limits
for filing his petition. See 29 C.F.R. § 1614.303(c). Consequently,
the Commission DENIES consideration of this petition for review.
PETITIONER’S RIGHT TO FILE A CIVIL ACTION (W0610)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission’s decision. You have the
right to file a civil action in an appropriate United States District
Court, based on the decision of the Merit Systems Protection Board, within
thirty (30) calendar days of 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.
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
__6/30/11________________
Date
2
0320110013
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0320110013