05980002
05-26-2000
Andrew L. Colvin Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.
Andrew L. Colvin v. Department of the Air Force
05980002
May 26, 2000
Andrew L. Colvin )
Complainant, )
)
v. ) Request No. 05980002
) Appeal No. 01955902
) Agency No. 7K9J9404C
F. Whitten Peters, ) Hearing No. 150-94-8522X
Secretary, )
Department of the Air Force, )
Agency. )
______________________________)
DENIAL OF REQUEST TO REOPEN
On September 24, 1997, Andrew L. Colvin (complainant) initiated a request
to the Equal Employment Opportunity Commission (EEOC) to reconsider
the decision in Colvin v. Department of the Air Force, EEOC Appeal
No. 01955902 (August 19, 1997). In 64 Fed.Reg. 37,644,37,656 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.106(d),
the regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision where the party demonstrates
that: (1) the previous decision involved clearly erroneous interpretation
of material fact or law; or (2) the decision will have a substantial
impact on the policies, practices or operation of the agency. 29 C.F.R. �
1614.405(b). Complainant's request is denied.<1>
The issue on appeal is whether the previous decision properly dismissed
complainant's appeal to the Commission because it was untimely filed.
The record shows that the agency issued a final agency decision (FAD)
on June 27, 1995 regarding complainant's class complaint. According to
the certified mail return receipt contained in the previous record,
complainant's attorney of record received the FAD on July 7, 1995.
Complainant, through his attorney, then filed with the Commission an
appeal of the FAD in an envelope postmarked on Tuesday, August 8, 1995 -
beyond the thirty (30) day time limit set by Commission regulations. The
previous decision dismissed the appeal as untimely filed, noting that
complainant failed to submit any justification to invoke waiver or
equitable tolling.
By regulation, appeals by a complainant to the Commission must be filed
within thirty (30) calendar days after the complainant receives notice of
the final agency decision. Appeals are deemed filed on the date received
by the Commission, unless postmarked earlier. 29 C.F.R. � 1614.402(a).
Moreover, Commission regulations provide that where an EEO complainant
is represented by an attorney of record, the time limitation for filing
an appeal should be calculated from the receipt of the final agency
decision by the attorney. 29 C.F.R. � 1614.402(b). The Commission's
regulations governing the computation of the time limits allow for waiver
and/or equitable tolling. 29 C.F.R. � 1614,604(c).
In his request for reconsideration, complainant primarily submits
evidence and argument regarding the merits of his complaint. However,
complainant requests the Commission to accept the previous appeal in
the interest of justice, if the previous appeal was indeed untimely.
After a review of complainant's request for reconsideration, the previous
decision and the entire record, the Commission finds that complainant's
request does not meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny complainant's request. The
decision of the Commission in Appeal No. 01955902 remains the Commission's
final decision. There is no further right of administrative appeal from
the decision of the Commission on this request for reconsideration.
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (P0400)
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 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.
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
05-26-00
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed.Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also
be found at the Commission's website at www.eeoc.gov.