05990423
10-14-1999
George D. Foote, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
George D. Foote v. Department of Agriculture
05990423
October 14, 1999
George D. Foote, )
Appellant, )
) Request No. 05990423
v. ) Appeal No. 01984879
) Agency No. NO450509
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
__________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On February 28, 1999, George D. Foote (appellant) initiated a
request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Foote v. Dept. Of Agriculture, EEOC Appeal
No. 01984879 (January 29, 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 was removed from his position for
unsatisfactory performance in September 1995. Appellant pursued a claim
with the Office of Workers' Compensation Program (OWCP). In October 1997,
appellant contacted an EEO counselor alleging discrimination based on
disability concerning his removal. The agency dismissed the complaint
for failure to timely contact the EEO counselor in a timely manner,
noting that posters with the requisite information were posted. The
previous decision affirmed without substantive comment.
In his request for reconsider, appellant provides additional medical
information. The Commission notes that information concerning appellant's
OWCP claims take up most of the record. In particular, the Commission
notes there is correspondence dated December 2, 1996 from the OWCP
responding to his request for reconsideration as well as a copy of a
letter wherein appellant submitted "relevant evidence not previously
considered in [his] case." In the submission, appellant mentions
that he went through "discrimination related to increased supervisory
scrutiny." In addition, at the time of his proposed removal, appellant
was represented by the union which submitted a written response which
referenced the agency's responsibility to accommodate him. As such, the
Commission is not convinced that appellant was not aware of his rights
and his contact with the EEO counselor more than two years after his
removal was untimely.
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. 01984879 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. 14, 1999
____________ ___________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat