Andrea Fuentes, Appellant,v.Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionSep 2, 1999
05971051 (E.E.O.C. Sep. 2, 1999)

05971051

09-02-1999

Andrea Fuentes, Appellant, v. Janet Reno, Attorney General, Department of Justice, Agency.


Andrea Fuentes, )

Appellant, )

) Request No. 05971051

v. ) Appeal No. 01956091

)

Janet Reno, )

Attorney General, )

Department of Justice, )

Agency. )

)

DENIAL OF RECONSIDERATION

On September 5, 1997, Andrea Fuentes (hereinafter referred to as

appellant) initiated a request to the Equal Employment Opportunity

Commission (Commission) to reconsider the decision in Andrea Fuentes

v. Janet Reno, Attorney General, Department of Justice, EEOC Appeal

No. 01956091 (July 9, 1997). EEOC Regulations provide that the

Commissioners may, in their discretion, reconsider any previous

decision. 29 C.F.R. �1614.407(a). A request for reconsideration must

be filed within 30 days of receipt of the previous appellate decision.

29 C.F.R. �1614.407(b). A request is timely filed if delivered in person

or postmarked before the expiration of the applicable filing period.

29 C.F.R. �1614.604(b).

Although appellant asserted that she received the previous decision

on August 5, 1997, a certified mail return receipt indicates that the

previous decision was in fact received by appellant on August 4, 1997.

The previous decision included a statement of rights apprising appellant

of the time limit to initiate a request for reconsideration. In addition,

the previous decision specifically advised appellant that, if extenuating

circumstances prevented the timely filing of a request, she must submit

a written statement setting forth the circumstances which caused the

delay and any supporting documentation with the request.

The Commission notes that the request contained a private postage

meter strip dated September 4, 1997. However, when there is a conflict

between a private postage meter strip and a later date affixed by the

U.S. Postal Service, the Postal Service date controls. See Benjamin

v. USPS, EEOC Request No. 05880324 (July 29, 1988). Nevertheless,

even if appellant is deemed to have mailed her request on September 4,

1997, the request is still untimely. Appellant has failed to submit

any justification for extending the filing period beyond 30 days.

29 C.F.R. �1614.604(c). Accordingly, her request for reconsideration

is untimely. The Commission's decision in EEOC Appeal No. 01956091

(July 9, 1997) remains the Commission's final decision in this matter.

There is no further right of administrative appeal from a decision of

the Commission on request for reconsideration.

STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION

RIGHT TO FILE A CIVIL ACTION (P0993)

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.

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. 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 (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:

09-02-99

Date Frances M. Hart

Executive Officer

Executive Secretariat