01991089
11-08-1999
William Overton, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, (National Guard Bureau) Agency.
William Overton v. Department of the Air Force
01991089
November 8, 1999
William Overton, )
Complainant, )
)
v. ) Appeal No. 01991089
) Agency No. T-0036-NY-F-02-96-RO
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
(National Guard Bureau) )
Agency. )
______________________________)
DISMISSAL
The complainant filed an appeal with this Commission from a final
agency decision (FAD) pertaining to his complaint of unlawful employment
discrimination. Pursuant to 29 C.F.R. � 1614.402(a), an appeal to the
Commission must be filed within 30 calendar days of the complainant's
receipt of the FAD. An appeal is deemed timely if it is delivered in
person or postmarked before the expiration of the filing period, or, in
the absence of a legible postmark, if it is received by mail within five
days of the expiration of the filing period. 29 C.F.R. � 1614.604(b).
The agency issued a FAD dated August 9, 1996 in which it accepted
several issues and dismissed one issue of complainant's complaint. The
record does not reflect when complainant received the FAD, however, he
admits that his appeal, which was filed November 17, 1998, is untimely.
Complainant requests a waiver of the 30 day appeal time limit. He states
that he was a witness in a 1992 investigation of his supervisor by the
Office of the Inspector General, an act which appellant alleged, in
the complaint at issue, caused his supervisor to retaliate against him.
Complainant alleges that the 1992 investigation can not be found and it
is an integral part of the issue the agency dismissed and the complaint
as a whole so the time limit should be waived.
In reference to the dismissed issue, the appeal was filed beyond the 30
day time limit to do so. The FAD explicitly informed the complainant of
the appeal time limit and where to file an appeal with the Commission.<1>
The appeal is untimely and, pursuant to 29 C.F.R. �1614.403(c), is
DISMISSED.
At the time of the instant appeal, the agency had not issued a FAD with
respect to the accepted issues. Thus, complainant's appeal is premature
with regard to those issues. The agency should continue to process the
accepted issues, as appropriate.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
November 8, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1Paragraphs 3 and 4 of the Review, Hearing, Appeal, and Civil Action
Rights attached to the FAD provide information on appeals to the
Commission.