Andrew L. Colvin Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
05980002 (E.E.O.C. May. 26, 2000)

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.