Estevan Gonzales, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 25, 1999
05990493 (E.E.O.C. Oct. 25, 1999)

05990493

10-25-1999

Estevan Gonzales, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Estevan Gonzales v. United States Postal Service

05990493

October 25, 1999

Estevan Gonzales, )

Appellant, )

) Request No. 05990493

v. ) Appeal No. 01987017

) Agency No. 1F-951-0022-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

__________________________________)

DENIAL OF REQUEST FOR RECONSIDERATION

On March 25, 1999, Estevan Gonzales (appellant) initiated a request

to the Equal Employment Opportunity Commission (EEOC) to reconsider

the decision in Gonzales v. USPS, EEOC Appeal No. 01987017 (March 2,

1999). EEOC Regulations provide that the Commissioners may, in their

discretion, reconsider any previous decision. 29 C.F.R. �1614.407(a). The

party requesting reconsideration must submit written argument or evidence

which tends to establish one or more of the following three criteria:

new and material evidence is available that was not readily available

when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);

the previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy,

29 C.F.R. �1614.407(c)(2); and the previous decision is of such

exceptional nature as to have substantial precedential implications,

29 C.F.R. �1614.407(c)(3). Appellant's request is denied.

The record indicates that appellant filed an EEO complaint alleging

discrimination based on race (Mexican-American) when he was removed

from his probationary position for falsifying his application. Appellant

received his notice of final interview on July 23, 1998, and filed his

formal complaint on Monday, August 10, 1998. The agency dismissed the

complaint for failure to timely file his formal complaint in that the

complaint was post marked three days after the due date of August 7,

1998. Appellant appealed and the previous decision affirmed without

substantive comment.

In his request for reconsideration, appellant does not give any reason

for the untimely filing of his complaint. Rather, he submits copies

of his complaint file and makes comments going to the merits of his

complaint. The Commission notes that appellant also appealed the agency's

final decision to the Merit System Protection Board, which dismissed

the matter for lack of jurisdiction. In addition, on August 17, 1999,

the agency informed the Commission that appellant had filed a civil

action. However, the documents provided by the agency do not give any

information as to the matters raised in the civil action. Thus, it cannot

be determined if the civil action covers matters addressed herein.

After a review of appellant's request for reconsideration, the previous

decision, and the entire record, the Commission finds appellant's request

does not meet the criteria of 29 C.F.R. �1614.407(a), and it is the

decision of the Commission to deny appellant's request. The decision

in EEOC Appeal No. 01987017 remains the Commission's final decision

in this matter. There is no further right of administrative appeal from

a decision of the Commission on a 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:

Oct. 25, 1999

____________ _______________________

Date Frances M. Hart

Executive Officer

Executive Secretariat